Scottish Sheriff Court Decisions

A306/2007

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

Sheriff G J Evans

in causa

COLIN HEPBURN GREIG

residing at 41 Abbotshall Road, Kirkcaldy, KY2 5PH,

as an individual and as Guardian of his brother,

Neil David Greig

residing at 42 Bowhouse Drive, Kirkcaldy

PURSUER

against

SHAUN NORMAN SKENE MIDDLETON and LAURA MIDDLETON

spouses, residing together at 19 Queens Crescent, Edinburgh

DEFENDERS

 

CUPAR, 24 March 2009. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

 

1.      The parties are as designed in the instance.

2.      The pursuer and his brother, Neil David Greig, are pro indiviso heritable proprietors of the property known as Ardsheiling, 28-30 High Street, Earlsferry, Elie, Fife. The pursuer has been appointed his brother's legal guardian by virtue of a Guardianship Order and thus represents his brother in the case.

3.      The defenders are heritable proprietors of the adjoining property known as Ashdene, 26 High Street, Earlsferry, Elie, Fife.

4.      The pursuer's great grandfather, Thomas Nelson Greig and his spouse, Mrs Agnes Melville or Greig, acquired Ardsheiling and its incorporated painting shop premises from David Barclay Greig, painter, by disposition in their favour dated 29 January 1918 and recorded in the Register of Sasines for the Burgh of Earlsferry on 12 February 1918 (vide 5/5 of Process).

5.      About this time the pursuer's great grandfather also purchased the adjoining property of Ashdene. He continued to operate his painting and decorating business from the said shop premises at 28 High Street and to live at Ashdene until his eventual death in 1955.

6.      The pursuer's great grandfather, having survived his spouse, left his painting and decorating business to his son, David Barclay Greig (the pursuer's grandfather) and the residue of his estate to his said son, his daughter, Mrs Agnes Melville Greig or Howie, and his other daughter, Mrs Isabella Nelson Greig or Welsh (the pursuer's great aunt), with the option to his said son within 3 months of his father's death to purchase Ardsheiling.

7.      David Barclay Greig declined, however, to exercise his said option to purchase Ardsheiling and he and the other residuary legatees agreed inter se inter alia as follows:-

 

"Ardsheiling without right of access to Links Road, Earlsferry, through the garden of Ashdene shall be exposed for sale by Public Roup with a right specially reserved in the Articles of Roup to each of us to bid for and buy these subjects. The Upset Price on first exposure shall be Fifteen Hundred Pounds which shall be reduced upon subsequent exposures till the subjects are sold. The said David Barclay Greig offers to buy and we all agree to sell the house and garden known as Ashdene, High Street, Earlsferry, as described in the Titles thereof and with no access from Ardsheiling through the garden to Ashdene to Links Road, Earlsferry, at the price of Four Hundred and Fifty Pounds with entry as at the term of Martinmas Nineteen Hundred and Fifty Five." (vide 6/4 of Process)

 

8.      In furtherance of that agreement, the pursuer's grandfather, David Barclay Greig purchased Ashdene and his title thereto was recorded on 2 March 1956, entry having been taken at some time before that at the time of his marriage in 1940.

9.      Also in furtherance of that same agreement, the pursuer's great aunt Mrs Isabella Nelson Gray or Welsh purchased Ardsheiling with entry thereto as at 1 February 1956 but title thereto not being recorded until 17 January 1977. The Disposition in her favour (vide 5/3 of Process) stated "with free ish and entry thereto from High Street only".

10.  David Barclay Greig and his wife Mrs Joan Eliza Gillard or Greig (ie the pursuer's grandparents) continued to live together at Ashdene until the grandfather's death in 1987 when the property passed to the said Mrs Joan Eliza Gillard or Greig. She continued to live at said address until her own death in 2001.

11.  Mrs Isabella Nelson Greig or Welsh continued to live at Ardsheiling from 1956 to her death on 21 June 2006. Following on her death, title to Ardsheiling passed to the pursuer and his said brother by virtue of Certificate of Confirmation issued by Cupar Sheriff Court on 23 October 2006.

12.  On the death of Mrs Joan Eliza Gillard or Greig in 2001, her daughter, Mrs Carol Greig or Cummings (ie the pursuer's aunt) was her mother's executrix-nominate and in that capacity sold Ashdene to the defenders with entry on 26 July 2002 and title thereto registered on 19 August 2002 with Title No FFE56621 (vide 6/1/2 of Process).

13.  The layout of the two respective properties is as shown in the plan comprising 6/1/5 of Process. Ashdene and its boundaries are within the area marked in red and Ardsheiling and its boundaries are within the area marked in blue.

14.  Within the area marked in red is delineated the area the defenders have planning permission to create off-street parking for two cars and the area available for a proposed development of one other dwellinghouse. The two existing gaps in the fence between Ashdene and Ardsheiling are shown where there is a broken red line, ie just beyond the former painting sheds and by the two lean-to sheds marked "storage", both within the grounds of Ardsheiling. The latter gap is also marked by a red cross, as is the double gate at the top for existing vehicle access to Ashdene.

15.  Also within the area marked in red, Ashdene itself is marked within said plan as "No 26" and beyond that is marked the existing brick wall with solid wooden door or gate about half way up the total area belonging to Ashdene and which gives Ashdene, if required, a self contained garden area adjacent to the house. Said door or gate can be bolted from within the self contained garden area side.

16.  Within the area marked in blue, Ardsheiling itself is marked within said plan as "Number 28" and beyond that the former buildings used in the painting business are marked "sheds".

17.  The double gate at the top is as shown in the photograph comprising 6/2/1 of Process, ie with a sliding bolt at the top and two sliding bolts at the bottom and with a heavy metal latch to the left hand side and a heavy metal bar to the right hand side, all within the garden ground side of said double gate.

18.  One of the reasons for the pursuer's great grandfather, Thomas Nelson Greig, purchasing Ashdene after acquiring Ardsheiling along with his wife, Mrs Agnes Melville or Greig, was to assist him in the running of his painting and decorating business from the workshop premises within Ardsheiling.

19.  He was thus able to take large industrial size ladders and his hand carts out on to Links Road in a way that he could not have done from the front of Ardsheiling.

20.  When his son, the pursuer's grandfather, David Barclay Greig, took over the business, the gaps in the fence between Ardsheiling and Ashdene were made by him to assist him in the running of the business. He was able to get access to his workshop, store his ladders in the garden of Ardsheiling and keep his lawnmowers and other garden equipment there as well.

21.  During this period while he was running the business, his sister, Mrs Welsh, took advantage of the gaps in the fence to enter in to the back garden of Ashdene from Ardsheiling as she liked to weed for her brother.

22.  She also liked to stand on a mound and look over the back wall of Ashdene to view the golf links.

23.  The back gates from Ashdene on to Links Road were usually kept closed and in winter, when the weather was bad, they would be padlocked.

24.  David Barclay Greig's children, ie his daughter Carol and his son Brian (the pursuer's father), if going out the back, would often hop over the wall rather than open the double gate which their father was particular about and wanted kept closed and bolted against strangers, such as golfers, looking for their missing golf balls.

25.  In the finer weather, when the gates were not padlocked, it was possible to close or operate an inner bolt from the street side of the double gate and go in and out that way. The gate, however, was mostly used to take the family car in and out.

26.  There were some occasions during the fine weather when Mrs Welsh would use the back gate to go to her cleaning jobs in Earlsferry but, as she had jobs to do in the High Street, it was more suitable for her to go out of her own front door.

27.  Because of the layout of the back gardens to Ashdene, the fact that it was walled in two places, one at the far back with a double gate and one about half way down with a single solid wooden door, it was impossible for anyone in the downstairs of Ashdene to see if Mrs Welsh was weeding in the grounds of Ashdene, viewing from the back wall or coming in and out of the back gates.

28.  The Greig family in Ashdene were thus not always aware or Mrs Welsh's comings and goings into their garden.

29.  Occasionally if Mr Greig saw her weeding, he would tell her to stop and go back into her own garden.

30.  When the Greig family had had enough of Mrs Welsh's company, they would bolt the single solid wooden gate into their top garden to prevent her dropping in on them that way.

31.  They did nothing to stop her coming over the bottom garden ground when family visitors were arriving and departing, as she was one of the family.

32.  On the death of her brother, David Barclay Greig, Mrs Welsh did not stop her occasional activities of weeding in the back garden of Ashdene, viewing over the back wall and going in and out of the back gates.

33.  When she did so, both Mrs Greig and her daughter Carol Cummings were rarely aware of her presence.

34.  When the defenders took entry to Ashdene in July 2002, neither of them were aware of Mrs Welsh continuing to come into their garden to weed, although they occasionally came across signs of weeding activity, which they found odd.

35.  In 2005, the defenders arranged for the two gaps in the fence to be blocked off and spoke to Mrs Welsh to advise her of their intention before going ahead. Their motivation at that time was to make this part of their garden safer for their own children and to prevent other children from using the trampoline which they had put up in that part of the garden. Mrs Welsh did not indicate to them at that point that she had a right of access across this part of the garden.

36.  The pursuer more or less immediately removed the new fence put in by the defenders and restored the two gaps in the existing fence under police supervision and disabled the padlock on the double gate.

37.  Mrs Welsh subsequently signed an affidavit dated 23 September 2005 which the pursuer helped her to prepare and which was drawn up by his solicitor, George Sandilands of Beveridge, Herd and Sandilands, Solicitors, Kirkcaldy.

38.  The affidavit comprises 5/1/2 of Process and a telephone note of 9 April 2008 accurately records and is to be treated as equivalent to the evidence from Mr Sandilands about his involvement in how the affidavit came to be taken from Mrs Welsh.

 

FINDS-IN-FACT-AND-IN-LAW:-

 

1.      During the period from 1918 to 1955 when Ardsheiling was owned by Thomas Nelson Greig and his wife Mrs Agnes Melville or Greig and Ashdene was owned also by the said Thomas Nelson Greig, no positive servitude of pedestrian access was capable of being constituted by virtue of the use put by the said Thomas Nelson Greig of the ground of Ashdene to promote his painting and decorating business which he ran from Ardsheiling.

2.      During the period from 1955 to the death of David Barclay Greig in 1987, any possession of the ground of Ashdene by Mrs Isabella Nelson Greig or Welsh as proprietor of Ardsheiling was possession tolerated by virtue of family and business ties and not as of right.

3.      The actions of the defenders in 2005 in closing the gaps in the boundary fence between Ardsheiling and Ashdene and the subsequent actions of the pursuer in re-opening them would not have had the result that any possession of the ground of Ashdene by Mrs Welsh ceased to be exercised openly and peaceably.

4.      The period of possession of the back garden of Ashdene for pedestrian access by Mrs Welsh (and latterly by the pursuer) from her brother's death (ie sometime before September 1987 when his widow obtained confirmation on his estate) to the lodging of the Notice of Intention to Defend in the instant action (viz on 2 October 2007) being the date of judicial interruption, would be sufficient possession to constitute 20 years of open, peaceful and uninterrupted possession for the prescriptive period.

5.      Much of the possession that Mrs Welsh enjoyed of the grounds of Ashdene for pedestrian access during that period was however not known to either Mr David Barclay Greig's widow, Mrs Joan Greig, or her daughter Mrs Carol Cummings or the defenders themselves and when it was known, it was tolerated rather than being possession by Mrs Welsh as of right.

 

FINDS-IN-LAW:-

 

1.      No heritable and irredeemable servitude right of access and egress for pedestrian traffic from Ardsheiling to Links Road through the rear of the property of Ashdene has been created by the operation of prescription against the defenders as owners of Ashdene in favour of the pursuer as owner of Ardsheiling.

 

Repels the pursuer's second plea-in-law; and Sustains the defenders' second plea-in-law; Finds it unnecessary to deal with parties remaining pleas-in-law; Refuses the pursuer's craves and Grants the defenders absolvitor; Certifies the case as suitable for the employment of Junior Counsel and otherwise Reserves the question of expenses to a hearing at 9.45am on 17 April 2009.

 

NOTE:-

 

Introduction

 

Under Section 3(2) of the Prescription and Limitation (Scotland) Act 1973 it is open to the owner of what would then be the dominant tenement to establish a positive servitude over what would then be the servient tenement by founding on nothing but possession of the requisite character "for a continuous period of 20 years openly, peaceably and without judicial interruption". That character delineates as well the type and extent of the positive servitude thereby created but, once it has been so established, it "shall be exempt from challenge". This was the issue in the proof before me, concerning two adjacent properties in the High Street, Earlsferry, one or other - but largely both - of which has been in the same family for the past 120 years.

 

The pursuer and his brother (whom the pursuer represents as his legally appointed guardian) inherited one of these properties from their great aunt, Mrs Isabella Welsh, when she died on 21 June 2006. This was the property at Number 28-30 known as "Ardsheiling". Number 28 has a normal front door and leads into a small holiday flat. Number 30 is what used to be the shop premises of the family's painting and decorating business carried on through successive generations for about 100 years. It has a glass front and is now used as a front sitting room for the holiday flat. In the back yard of the property are outbuildings associated with the business, which must have ceased on the death of Mrs Welsh's brother, David Barclay Greig in 1987. Mrs Welsh had lived at Ardsheiling for some 50 years before her death. She was in fact born there. Her brother had lived at the adjoining property of Ashdene, at Number 26 High Street for all his married life subsequently acquiring it in 1956. After his death in 1987 it passed to his widow and she continued to reside there, with her sister-in-law Mrs Welsh as her next door neighbour for the next 19 years until she herself died in 2001. Ashdene is the only property of the two which, as well as having its own front door onto the High Street, also has a back door or gate leading on to Links Road, near the golf course. Ardsheiling has no such access. The way is blocked by another building, viz Links Cottage fronting on to Links Road. That is not an uncommon feature of this locality and where there are buildings fronting on to Links Road they will prevent the proprietors of those houses in the High Street abutting them from having access to Links Road. There are, however, gaps in the fencing between Ardsheiling and Ashdene and these gaps would allow a person to walk from the back garden of Ardsheiling into the back garden of Ashdene and out of the gate at the top. When Mrs Welsh's brother's widow died, her daughter, Mrs Carol Cummings, sold Ashdene to the defenders, a professional couple from Edinburgh who use it as a holiday home for themselves and their young family. That was in 2002 when Mrs Welsh was still alive. The property was sold with outline planning permission for another dwellinghouse as that is a feasible use of the property. It would still be possible for the defenders to use Ashdene as a holiday cottage with its own self-contained garden ground as there is already a wall with its own door leading on to the rest of the back garden and that on its own would provide a sufficiently good sized garden for the defenders and their children. They have had to put these plans on hold due to the dispute which arose with Mrs Welsh and with the pursuer as to her right of access through and over the back garden of Ashdene where it abuts on to Links Road.

 

Following Mrs Welsh's death in 2006, the pursuer eventually brought an action in his own right and that of his brother to declare a servitude right of access and egress for both pedestrian and vehicular traffic "from Ardsheiling to Links Road, Earlsferry through the land belonging to the defenders and lying generally to the rear of their property Ashdene, 26 High Street, Earlsferry such rights having been acquired (1) by the operation of prescription and/or (2) of necessity". At the proof before me, Mr Sanders, Advocate, Edinburgh appeared for the pursuer and Mr Smith, Advocate, Edinburgh for the defenders. After a site visit, I heard evidence over 3 days followed by a day for submissions. The pursuer's evidence was from himself and his witnesses Doctor Ross Gardner, George Graham and Ella Greig. The defenders' evidence was from themselves and their one witness, Mrs Carol Cummings. It was evident from the submissions that I thereafter heard that the pursuer was no longer seeking to establish a positive servitude right of vehicular access, only pedestrian and that by prescription only and not by necessity. I allowed unopposed amendments to the Record to that effect. Having heard parties thereon, I took the matter to Avizandum.

 

State of Evidence (in relation to pedestrian access)

 

(a) Pursuer's Case

(i) The first person to give evidence was the pursuer's childhood friend Doctor Ross Gardner, 34, who had known the pursuer for 20 years both at school and later at university. He and the pursuer used to go to Elie with the pursuer's parents and stay at Ashdene eventually once a week. Mrs Welsh was about then to greet them. (This must have been round about 1988) He had seen the pursuer's great aunt go from Ardsheiling over Ashdene's garden to the double gates at the back. There was never any objection or concern about it. Although Mrs Welsh could at times be a difficult and irritating elderly lady, she would come and go and nothing was said. He had not been aware of any fences being between the properties. Under cross-examination, he stated that Mrs Welsh was "always hovering in the background". She was not a blood relation of the pursuer's grandmother, Mrs Greig, but "despite that she was always tolerated. I never understood anyone not wanting her to be there."

 

(ii) The pursuer stated that he had visited "both properties as a babe in arms. My first recollection was going there in the summer holidays, visiting my gran and my aunt" (ie his great aunt). He said that that would be when he was 7 to 8 years old and as he gave an age at the proof of 36, this would be 1979/80. He stayed there often for family holidays. His friend, Doctor Gardner had been there with him on a number of occasions. "They would visit every month ... we were a very close family." They would stay at Ashdene but on a couple of occasions at Ardsheiling. His great aunt would have been in her early 60s when he was aged 8. She was always very nice to him. She had been "a feisty character who did not get on with quite a few people". When he was having his breakfast, he would see his great aunt go to her work as a housekeeper in Elie. To do that she went across Ashdene's ground and out of the double gates. This was a Monday or a Friday when she was working for the Harvey Watts.

 

When he was in primary 5, that ie aged 9/10 years old (this must be 1981/82) he visited the two properties on countless times as by then he and his family had moved from Hawick to Kirkcaldy. This would be either at weekends or during the week. He would sometimes come on his own by bus. During this period he had frequently seen his great aunt spending a lot of her time standing on a boulder in the corner of Ashdene at the foot of the garden so that she could look out over on to Links Road. The wheelie bin for rubbish was too bulky to take through the front of Ardsheiling and had to be taken up to Links Road again through Ashdene garden. A problem only arose once Ashdene was sold to the defenders. They spoke to his great aunt and at that point made no objection to her continuing to wheel her rubbish out through Ashdene. There was no real problem over the first one and a half years. His great aunt carried on as before. She would walk up to the rowan tree in Ashdene and have a look over the back gate. Then a 6 foot timber fence was erected to fill in the two gaps in the existing fence between the properties by the defenders. There was no prior warning about it. It came completely out of the blue. He had taken the fence down on his great aunt's instructions and under police supervision. His great aunt felt that her rights of access had been over-ridden. If a new house were to be erected in terms of the planning permission granted, it would not impede access either by Ashdene or by Ardsheiling. Access would still be feasible for both properties.

 

The affidavit lodged by his great aunt was her affidavit and not his. It was in her words. She wanted the position recorded and she was very much concerned that her rights had been infringed. He explained that his great grandfather had acquired Ashdene so that he could use the access over it to the Links for his painting business. The relationship between his great aunt and his grandmother had been a love/hate one and they had quite often fought like cats and dogs. There was however no mention of any dispute over access.

 

He confirmed in cross-examination that his great grandfather had bought Ashdene to assist in his business. That business had possessed very large industrial ladders that could not be taken through the house at Ardsheiling. Although the pursuer had been aware that his great aunt had acquired Ardsheiling by public roup in around 1955, he had not been aware of the Minute of Agreement entered into at that time. In his conversations with his great aunt, it was evident to him that she thought that she did have a right of access. That was her clear position. The position on the ground was that access was always used. He accepted that the Disposition in favour of his great aunt said that she had access only from the High Street but that was not what had happened on the ground. He denied that his views had been coloured by his ignorance of what the Disposition had provided. "My observations were on the ground. Access is what had happened all my life." The workshops in Ardsheiling were used to store equipment in the painting business and had continued to be used for storage after the business ceased. He agreed that one of the leanto sheds had been for storing ladders and that the gaps in the fence had allowed Ashdene to access the sheds but it had also allowed his great aunt to go to Links Road. His grandfather would also have used the gaps to go to his workshops. He had never seen a padlock on the back gates anytime he had visited. His great aunt used to open the gates and lock them up again at night and tie them as well. He was only aware of his great aunt having the one position as a housekeeper - to Sir George and Lady Harvey Watt. She had walked up to their house. He could not pinpoint the period but she would probably have worked up until she was 65 and he was not aware of when she had started that kind of work. He suggested that she left for work at 8.30am when he was having his breakfast in the kitchen of Ashdene and he was aware of the gates at the back being opened and, as Mrs Welsh was only about 5 feet tall, just seeing the back of her head as she went out the back. It was not his recollection that his grandparents had merely tolerated the presence of his great aunt in their garden. Nor did he ever recollect her being asked to leave the garden of Ashdene when she tried to weed it. She was never stopped for pulling out dandelions in that garden. He could not say if the defenders had ever seen her doing that. He could not say if the defenders had ever been aware of her presence when she had walked through the garden at Ashdene.

 

His great aunt's affidavit had been in her own words without any gloss put on it either by himself or Mr Sandilands. It was what she had told him and he had written it down "I read it over to her and she signed it". He believed that when the defenders had spoken to his great aunt they had told her that her weeding activities were unnecessary. When they spoke to her, they made no objection to her getting pedestrian access.

 

(iii) Mr George Graham, aged 65, a retired undertaker for an insurance company, had first visited the property when he was 4 to 5 years old, ie in 1948 or 49. He had been in both properties on a number of occasions. "I would have gone through the old shop." He had been a playmate of the pursuer's father, Brian. Ardsheiling had been used as accommodation when Ashdene had been let out during the summer. "My perception as a child was that Ashdene was self-contained". On the other hand he also said that there was "a communality of purpose to the whole thing. The two properties were virtually one." In relation to the back gate, he could remember Mrs Welsh going out that way on the day of her cleaning job. The last time he had seen the gaps in the fence had been in the 1960s. In cross-examination, he confirmed that those gaps had been used by the owner of Ashdene for the running of his painting business, to get to his workshop and stores and painting equipment. There had been an element of give and take about it all. They had been a very close family. Mrs Welsh had been David Greig's sister. Their relationship was blended as much by business as by blood. Mrs Welsh had relied quite a bit on both Mr and Mrs Greig and they had kept an eye on her. When shown the photograph 6/2/1 of Process, he confirmed that the back gate shown there was as he remembered it. He remembered the sliding bolts at the top and bottom. It was a lot easier to jump over it and open it and you were in deep trouble if Mr Greig found out that you had left it open. Asked about Mrs Welsh's use of it, he said that she must have taken a chance when the gate was open or hopped over the wall. She probably felt that she had as much right to use the back gate as Mr Greig. They got on reasonably well. They were all together.

 

(iv) The pursuer's mother, Mrs Ella Greig, had first visited Ashdene in 1965 when she had started going out with her late husband. After he died in 2001, she had visited Mrs Welsh almost once a week. Mrs Welsh was always "peeking", ie weeding the back garden of Ashdene without objection. She personally did not like going up and down through the back of Ashdene and the only time she did it was when Mrs Welsh got older and needed help to get her up to the top where she liked to take the view. She liked to stare and look up the golf course. The pursuer and her late husband would both use the back entrance as would local workers, who knew the local set up. She remembered Mrs Welsh taking the children through the back gate. Mrs Welsh still thought that it was her right to walk up and down and to walk out the top gate. She liked to think that she was able to do that. She kept her dustbin at the back. Before the defenders moved in, Mrs Welsh had had no problems going in and out the back gate, as far as she was aware. She was very disappointed when they put the fence up and the pursuer had had to take it down for her. Her father-in-law, Mr Greig, had been aware of golf balls coming in the garden and he had kept the double gates bolted at the top to prevent golfers coming in to find them. He did not like strangers coming on to his property. It was left bolted and a brick was put at the bottom. In cross-examination, she confirmed that Mr Greig had been very concerned about the gates and had always bolted them when he came in that way. When asked what Mr Greig's attitude had been to Mrs Welsh's weeding activities, she stated that as far as she was concerned Mrs Welsh could go up and down the back as much as she liked. If they thought she was getting too much for them, they would bolt the other gate (ie the one leading in to the self contained garden near to the house). There had been a love/hate relationship between Mrs Welsh and Mrs Greig. Her mother-in-law, Mrs Greig, would have been lost without Mrs Welsh next door. They had needed each other for company.

 

(v) The other source of evidence for the pursuer was the affidavit given by Mrs Welsh in the circumstances narrated by Mr Sandilands in his note which is now all covered by a Joint Minute of Admissions.

 

(b) Defenders' Case

 

(i) Mrs Carol Cummings was brought up in Ashdene. That is where her parents moved to when they married in 1940. She was born in 1951. She was still based at home when she attended Aberdeen University in 1974. After university, she got married and lived in West Lothian for 2 years. Then she moved back to Fife to Dunfermline. She continued to visit her parents every other weekend or every fortnight. "I visited my parents regularly right up until my mother died in 2001". She had a brother Brian who was born in 1943 (ie the pursuer's father). Their father used the workshop mainly. By the time she was born, from 1955 when her grandfather died, the workshop was used to store painting things. The gap was to allow her father access to his workshop. It was not to allow Mrs Welsh access to visit Ashdene that she remembered. Her father had died in 1987. Mrs Welsh normally just went round to the front. "My mother's door was always open. It was mostly an unwelcome visit as they did not like each other. My mother had a strong dislike of my aunt. I described it to the local minister as a love/hate relationship. He said it was more hate/hate." The garden gate (ie the one nearer to the house and not the double gate at the back) was kept closed when they did not want Mrs Welsh's company. It was usually snibbed to keep her out and she generally got the message. She stated that her father and his brother had built the leanto garages together. Her family used the garage for their car. The second gap was where there was a lane against the wall and it was used as a space for ladders. Her father had wanted to keep them there. The back gate was a two sided one, and she gave evidence about the photograph and the annotations she had made on the photograph. She confirmed that her father had been almost obsessed about keeping it always locked. He was very strong about that. She spoke to how it was secured in summer and in winter and generally that it was too much hassle to be used regularly. "I and my brother and my friends would not use it as a pedestrian gate. It was really for my grandfather to take his handcarts and ladders out from." Mrs Welsh would have come down to the gates to see the visitors both arriving and leaving. "I have not seen her using the gates to leave the garden. I have seen her go into the garden and when she had run out of weeding to do in her own garden, she would do weeding in Ashdene's garden. My father was unhappy about it and would go up and have a row with her and tell her to go back into her own garden." On her evidence you would not be able to see anyone using the gates from the downstairs windows of Ashdene. When she was asked about standing on a small mound to see over the wall, she stated that Mrs Welsh may have done that a few times to see the golf course if her brother or father had been playing. She was then questioned about Mrs Welsh's cleaning jobs. She stated that she had had more than one of those. There had been Mrs White opposite the house in the High Street and Mrs Scott three doors down in the High Street. There had also been Lady Harvey Watt's house. She would go there about 8am. It was always an early start. By 1979 when Mrs Welsh was 70, Lady Harvey Watt asked her to cut down her attendance although she still went there if there was extra work to do before a dinner party, ie something inherent 2 or 3 times a year. She could not say when she had started doing this job. When asked how would she have got there she replied "the same way as she left to go anywhere - by the front door. It was not easier to get through the back. To get to the house, she would have gone out the front door." Her mother's attitude to Mrs Welsh weeding in the garden had been the same as her father's, ie telling her to go back into her own garden.

 

As to Mrs Welsh's use of the gate at the back, she might go out there if it was already open but she did not use it normally. "My father did not want her to use it. She would go in and out of the front door." She personally had not seen her go out the back gates into Links Road when she was going to her cleaning job. She could not picture her climbing over the wall. Lady Harvey Watt's house was as far away from the front entrance as it was from the back. It would be more direct to go to it from the front in the High Street but it was basically the same distance either way. For all she knew her aunt may have gone out that way to the Harvey Watt's on a daily basis but she had stopped going there regularly from about 1979. She could not say when this job had started. She herself had stayed at Ashdene when she was at university in 1970. She had got up for school at 7.30am. She did not remember staying overnight at Ashdene while the pursuer was also visiting. Her father had made sure that the gates were shut at the back. There was one key for the padlock and Mrs Welsh did not have that key. Mrs Welsh never went up to the gate. She would go into the garden of Ashdene and get turfed out of there. "I do not remember her having to use the gate, both for the reason that she ought not to have been there and because her main activity was gardening." She did not remember her parents saying that Mrs Welsh could use that route or be in their garden. When her father died in 1987 Mrs Welsh did not indicate that she was no longer bound by the Minute of Agreement that had been referred to in evidence. Mrs Welsh had not indicated to her that she had a right of access over Ashdene. When she became executor nominate on the death first of her brother and then of her mother in 2001, Mrs Welsh had asked if she could give her the top garden ground and she had refused and indicated that it was not what her mother would have wanted. She would have wanted Ashdene sold as a whole and she did not want Mrs Welsh to have any part of it.

 

She was asked in cross-examination why it was that if her mother and Mrs Welsh had disliked each other so intensely, her parents had not put up any fence to keep her out. She answered "my father went back and forth to his workshop. He used it all the time. His lawnmower was kept there for cutting the grass ..." She was then asked could a fence not have been put up when her father died in 1987. Her reply to that was "my brother took over my father's job of mowing the grass and the lawnmower was still kept in the workshop." When asked why they did not store the lawnmower in Ashdene and then put the fence up, she replied that they would need to have asked her brother about that. When she stayed with her parents during the university vacation, she was aware of Mrs Welsh going in and out her front door. "If we were arriving or leaving she would come up Ashdene's garden. The back garden was padlocked in the winter when the weather was very bad, but not usually in the summer." There was a padlock during the period 1985 to 2003. Other family members would have taken over Mrs Welsh's own clippings and grass cuttings for her.

 

(ii) Mrs Laura Middleton confirmed that there was no inkling of any right of access by the owner of Ardsheiling over the property they had acquired at the time of sale. They intended to use the property for the school summer holidays and other holidays. She had not been aware when they were down that their neighbour, Mrs Welsh, had been attempting to use the access across their property to Links Road. She did not see Mrs Welsh enter the garden. "I got the feeling that she might have been in. Sometimes you could see that dandelion weeding had been carried out. A spot of weeding. We thought it a bit strange." It would not have been easy for Mrs Welsh to have walked up and down that part of the garden then in any event as it was filled with very long grass. She had spoken to Mrs Welsh about putting up fences to block off the two gaps because she wanted to keep other children away from a trampoline that they had installed for their own children. It was not something that had happened "out of the blue". "She seemed disappointed but never said anything about having a right of access. She may have taken it for granted that she could pop out of her back garden but we were not part of her family and it was over our property now."

 

(iii) Mr Middleton confirmed that the gaps in the fence had been there when they had first acquired the property. No-one had taken access by the back gate. It had been locked when they had taken entry. It was obvious that the next door neighbour had done some weeding to the garden at the back of Ashdene as there were holes in the grass. "We thanked her very much but told her that now we were to be there, we would get a gardener in to do it." He had not been aware of her coming in to the garden for other purposes. He had not seen her standing on a mound looking over the garden wall. "We never saw anyone in the back garden when we first moved in". He explained that as the children got older, he and his wife had decided to block off the gaps in the fence as that was an area they would play in, as they had installed a trampoline and a swing there. The old workshops next door were quite dangerous and he did not want them exploring through there. His wife had spoken to Mrs Welsh about it before it was done. She did not say "you cannot do that. I've got a right of way." Under cross-examination he explained that he and his wife decided to remove the padlock on the back gates as their boys were wanting to go and use the back themselves by that stage. Mrs Welsh had not come in to their garden when they were using their property for the summer although she may well have done so when they were not there.

 

Submissions for Pursuer

 

Mr Sanders accepted that problems only arose in the situation between the two properties once Ashdene had been taken out of family ownership. The defenders had bought it in good faith with a clear disposition granted by Carol Cummings. There had been no reservation of a servitude right of pedestrian way and they had also been given a clear Land Certificate. They had every reason to think that it was unburdened. Mr Sanders nonetheless submitted that the evidence showed that the servitude right of pedestrian access sought had indeed been exercised peaceably, openly and without interruption for 20 years. The defender had led evidence of two relatively independent witnesses in that regard, viz Doctor Gardiner and Mr Graham. I should find Doctor Gardiner to be a very credible and reliable witness and he commended the evidence of Mr Graham as also straightforward and clear. It was clear that access had been exercised by Mrs Welsh for many years. Non family members had given evidence that supported the creation of a servitude right of prescriptive possession. Ella Greig had been a very a nervous witness but again it was clear from her evidence that from 1975 on she had been visiting the properties and there had been clear and uninterrupted access by Mrs Welsh over Ashdene. On top of that evidence, there had also been the affidavits from Mrs Welsh and the evidence of the pursuer himself. Mr Sanders did not want to make too much of the affidavit and he accepted that it had not been subject to cross-examination but the thrust of it was supportive of the rest of the evidence. The evidence of the pursuer had been very clear in support of the existence of the servitude and he had discharged the burden on him of proving it.

 

The case for the defenders was heavily reliant on the evidence from Carol Cummings which should be discounted, as she was clearly a partisan witness with a grudge against the pursuer and with a vested interest in disproving his case in the light of the warrandice granted by her to the defenders. There was clearly bad blood between her and the pursuer, despite her attempt to represent herself as impartial. Her annotations to the photograph of the back gates made no mention of there being a padlock on it. She had discussed with the pursuer his offer to buy out Ashdene without any agreement being reached. She had co-operated with one set of solicitors but not the other. Her evidence had to be looked at very carefully. If there had been objections to Mrs Welsh's use of Ashdene garden ground, surely a fence would have gone up many years previously. The only person who had made mention of a padlock being habitually up on the back gates was herself. Her evidence had been contradicted by four others in all material respects and should be rejected.

 

As to the law on the matter, I was referred to the following four cases, viz Aberdeen C.C. v Wanchoo 2008 SLT106; Fred Neumann v Brian and Isobel Hutchison and the firm of MacBurnside Garage, a decision of Sheriff Principal Dunlop at Stirling dated 1^st May 2008 (unreported) and an article thereon in Greens Civil Practice Bulletin, issue 81 of June 2008; North East Fife District Council v Nisbet and Another 2000 SCLR413 and Robertson v Hossach 1995 SLT291. There was in the instant case evidence of sufficient quality and quantity to justify the granting of decree in favour of the pursuer and I was invited to do so. I should certify the cause as suitable for the employment of Junior Counsel and otherwise reserve any question of expenses to a future hearing.

 

Submissions for Defenders

 

Mr Smith invited me to dismiss the pursuer's pleas-in-law and to sustain the defenders first, second and third pleas-in-law. The burden of proof being on the pursuer, the question was whether he had succeeded in establishing pedestrian use had been taken over Ashdene openly and peaceably for an interrupted period of 20 years in a way that was unequivocally referable to the alleged right of servitude rather than some other basis, for example tolerance on the part of the proprietors of Ashdene. In that context what difference did it make, if any, that the proprietors of the neighbouring properties were relatives? When one family member makes use of a neighbouring relative's property, is that more or less likely to be interpreted as the assertion of a right? What interpretation should be placed on the contractual documents in which the proprietor claiming the benefit of a servitude agrees that the land she bought came with no servitude right? Is that simply an acknowledgement of a state of affairs that existed at the time the contract was entered into or did the existence of the agreement not provide a framework or background against which any later access taken in fact had to be interpreted?

 

Mr Smith then went through the evidence led for the pursuer. Doctor Gardiner had been the pursuer's school friend and briefly gave evidence of his experience of being taken by Brian Greig to visit Colin's grandmother at Ashdene. What he seemed most vividly to recall in relation to Mrs Welsh that she was "always there to greet us" at the back gate. That was consistent with Mrs Cummings' evidence. Everyone seemed to have agreed that Mrs Welsh was an immensely curious woman always "hovering" at the back gate when a visit was being paid. It was difficult to know what reliance should be placed on Doctor Gardiner's comment that everyone including Mrs Welsh exited out of the back gate as his experience was limited to being taken with the pursuer on visits to Ashdene. He stated that he did not stay overnight so it was clear that the visits would be brief and, when pressed, only spoke only to Mrs Welsh using the back gate "on a number of occasions". His evidence did not take the pursuer anywhere as regards the quantity of use or its quality.

 

The pursuer was prone to exaggeration in his evidence. Examples were given of that. In other places his evidence plainly lacked credibility and again examples were given of that. In general the pursuer was not a reliable witness particularly as to crucial matters of detail such as dates and further examples were given of that. For all these reasons his evidence should not be followed where it contradicted those of Carol Cummings and the Middletons.

 

There was no reason to doubt the credibility of Mr George Graham as a witness but one could question whether his memory was playing tricks on him when he said the gate was over 6 feet high when other witnesses seem to be agreed that it was about 5 feet in height. He clearly had difficulty reconciling Mrs Welsh leaving for work through the gate and the fact that the gate was kept locked. Even taken at its highest for the pursuer, evidence of someone hopping over the wall or taking advantage of the gate left open was not evidence of access taken openly as required by the law of prescription and in any event Mr Graham's evidence was confined to a relatively brief period ending in the 1960s and could not on its own found prescriptive possession.

 

Mrs Ella Greig although she had clearly begun to visit Ashdene in the 1960s, there was no evidence taken of the frequency of her visits during the first 30 years. While she remembered Mrs Welsh taking the children through the back gate, it had to be remembered that they would have been visiting Ashdene so that taking them out for a walk was as much for the benefit of the owners of Ashdene and the family as a whole as it was for Mrs Welsh. This witness was clearly anxious about giving any evidence at all and was not able to be drawn on the facts in detail, which limited the usefulness of her evidence.

 

Turning then to the evidence of the defenders, Mrs Carol Cummings was a former school teacher with a habit of filing details and had a precise recollection of matters. She was an impressive witness. She faced up to the cross-examination challenging her motives and clearly felt that she had a morale obligation to stand by the position she had taken when selling the house. Her phone call to Mr Graham was perfectly natural as she would want to speak to someone else who had familiarity with the facts of the case. Her evidence should be preferred to the evidence of others where they were different.

 

Mr and Mrs Middleton's evidence corroborated each other. Both were credible and reliable and obviously truthful witnesses. Neither of them had seen Mrs Welsh ever taking strolls in the garden and this directly contradicted the evidence of the pursuer. Mrs Middleton had also given evidence that Mrs Welsh ask for permission to allow the pursuer to take his car over Ashdene and she had never objected to the fences being erected on the ground that they impeded her right of way.

 

Having proposed a number of possible findings-in-fact, Mr Smith then turned to the law on the matter. The pursuer sought to establish a servitude as a matter of inference from use or acts of possession. It was well established that acts of possession might raise an inference that a servitude existed if they themselves "were of such a character or done in such circumstances as to indicate unequivocably to the proprietor of the servient tenement the fact that a right is asserted and the nature of the right" (vide McInroy v Duke of Athole 18R(H.L.) 46, per Lord Watson at 48; Wanchoo supra at page 110. This could be broken down into four sub principles.

 

(1) The matter had to be looked at objectively.

(2) There had to be a frequency of use over the requisite period of 20 years as was sufficient to raise the inference.

(3) The use had to be open, that is the acts of possession must have been known to or ought to have been known to the servient proprietor.

(4) The use had to be as of right and not be capable of being ascribed by some other basis such as helpfulness between neighbours.

 

When those neighbours were also relatives, one might expect even more give and take between them without that raising any inference that a right was being asserted (vide Cusine and Paisley on Servitudes and Rights of Way at paras 10.19 and 10.20). The burden of proof was always on the pursuer and in that regard the pursuer had not succeeded in proving a sufficient volume of use over the 20 year period. Such evidence as there was regarding pedestrian access was too vague and uncertain. There had been no evidence of consistent use over the 20 year period. There had been no clear distinction between use taken as a member of a family, for example to greet visitors, and use taken as an owner. Mrs Cummings' evidence was the most reliable evidence of Mrs Welsh's day to day activities and she had stated that the gate was not used by Mrs Welsh to go to work. In any event there was never any evidence about the number of years that Mrs Welsh had worked at the Harvey Watts' house. In short the pursuer's case had fallen at the first hurdle. Secondly, as regards to the quality of any access, there had been no evidence that any use taken by Mrs Welsh had been taken openly and as of right, rather than as a matter of tolerance. There had been no evidence that anyone at Ashdene was aware or ought to have been aware of any access taken by Mrs Welsh. There had been some evidence that she might have hopped over the wall or taken advantage of occasions when the gate might have been open, but none of that amounted to open use. In any event the law did not require owners always have to insist upon their rights, particularly in a context where the neighbouring properties were owned by family or relatives and where more give and take might be expected than would ordinarily pass between neighbours - even where the relatives did not necessarily get on.

 

Thirdly, standing the terms of the Minute of Agreement of 1955, it was difficult to see how if any access was thereafter taken as a matter of fact by Mrs Welsh over Ashdene, it could objectively be regarded by anyone as an assertion of right which she had acknowledged right from the start that she did not possess. This Minute should be read as a standing objection from David Greig to any such assertion of a right by Mrs Welsh. As such it did not require to be repeated on a day to day basis and any access taken in fact was accordingly always something less than a right of servitude.

 

The Affidavit from Mrs Welsh was somewhat unsatisfactory in regard to the circumstances in which it was taken but even ignoring that it did not condescend to give any particulars of the circumstances in which possession was said to have been taken. Nor was it subject to any cross-examination, which was important given that it was inconsistent with the evidence of Carol Cummings and the defenders. In Mr Smith's submission it should be given no weight.

 

The pursuer had said that the granting of planning permission would not interfere with the pedestrian right of access but while that might be so, it was not a relevant consideration for the court. In any event, the pursuer had already benefited from Ashdene being sold as apparently unburdened by any rights of access since, as he conceded, this would have increased the sale price which he was entitled to part of as a beneficiary. More relevant was the situation figured by the court of a granny flat being sold off and the access through it to the principal property being closed. It was implausible that any servitude right of access would thus have been acquired. Neither the pursuer nor Mr Sanders had adequately explained why their case was any different.

 

For all these reasons, Mr Smith renewed his opening submission that I sustain the defender's first, second and third pleas-in-law.

 

Decision

 

(i) The Legal Issues

 

The test for creation of a real right of servitude by user over the prescriptive period is an objective one, as was stressed in the case of Aberdeen CC v Wanchoo supra at para [18]:-

 

"As was indicated in McInroy (supra), the test is objective. In the leading speech of Lord Watson in that case, his Lordship 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 character or be done in such circumstances as to indicate unequivocably to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right." Very occasional user in peculiar circumstances may be readily ascribed to a sense of helpfulness or personal obligement on the part of the proprietor of the servient tenement. But as is stated in Gordon on Land Law, para 24-49: "If usage is only occasional, the court is likely to infer that the usage was by tolerance rather than as of right. As a matter of good neighbourhood a proprietor is not likely to object to occasional use of his property by a neighbour, and the law does not oblige him to object to such occasional use in order to prevent his neighbour from acquiring a right. But if use is substantial and fairly constant, challenge is necessary to preserve freedom from servitude rights, and the challenge must be successful. Persistence in use in face of an unsuccessful challenge is good evidence of use as of right." To similar effect are Cusine and Paisley at para 10-19 in fine, where they say "... what matters is the volume of possession. Where the volume is reasonably substantial, taking account of the nature of the right claimed, this will be regarded as adverse and as the assertion of a right."

 

The matter is further developed in 'Newman' supra (which also quotes the above passage):-

 

"... what matters is the volume of possession and where the volume is reasonably substantial, and a servient proprietor has done nothing to challenge it, that will be regarded as adverse and as the assertion of a right. Thus the volume of unchallenged possession becomes the primary means by which one distinguishes use as a right from use tacitly permitted." (vide para 39)

 

and

 

"... if the user is of such amount and of such character as would reasonably be regarded as being an assertion of right, it will readily be inferred that the use was as of right unless that inference can be displaced by evidence of permission or tolerance as those words are properly understood." (vide para 46)

 

It is also highlighted in the Sheriff Principal's judgement that it is not what the parties thought or said in their private minds that is important, it is what they did.

 

None of these cases, however, nor any other case cited to me deal with the family dimension present in the instant case. As was stated by Lord Watson in 'McInroy' supra, there has to be an unequivocable indication that a right is being asserted and it is difficult to see how that can be where the respective parties are close family members and not in any sense at arms length with one another. Cusine and Paisley state at paragraph 10.20:-

 

"Since servitudes are restrictions on ownership, it is thought that the court will be reluctant to find that there is a servitude if the use is capable of being attributed to some other factor, for example a lease, contract, licence, or statutory right or being a good neighbour."

 

To those other factors can surely be added the fact that the proprietors in question are closely related family members and therefore they will always be, in the absence of anything destroying or sufficiently weakening those family ties, a sufficient and strong enough explanation available to explain why possession has been allowed without resorting to establishment by right, no matter the volume and the length of the possession enjoyed. I put to the pursuer (and I agree with Mr Smith that it was not satisfactorily answered) the imagined case about a granny flat with a connecting door which has been used for over 20 years to allow the occupier of the granny flat to visit her daughter in the main flat and to allow her daughter to look after her mother in the granny flat. Once the mother has died and the flat sold off as a separate dwelling house with the connecting door blocked up, the purchaser of the granny flat could not insist on the connecting door being unblocked on the ground that the previous owner's possession of it for over 20 years had constituted a right of passage between the two houses. The volume of possession might have been very great, and the door in almost daily use, but the circumstances would not "indicate unequivocably to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right." One can also figure a dower house separated from the main house by a field belonging to the main house which, let us say, the aunt in the dower house walked over for the prescriptive period to visit her nephew and his family before she herself died and the dower house was sold off. The new owner of the dower house would not expect to establish a right of access over the field in those circumstances as the family relationships between the separate properties provided a sufficient explanation for the user of the field. This type of family concession and arrangement would not require the 'servient' family member making clear positively and forcibly to the 'dominant' family member at regular intervals that such user was being tolerated only and was only exercisable at the will of the 'servient' family member. All that would be implicit in the situation.

 

(ii) Factual Issues

 

The pursuer's case on record is somewhat unfocused and this was borne out both in the evidence led on his behalf and the submissions made, which were very general in their terms. I have thought it best to deal with the factual issues in three separate periods of time as different considerations apply to each. Before doing so I would mention that I do not find the affidavit obtained from Mrs Welsh of any evidential significance. Even accepting that it is her own view and in her words, all it confirms is her state of mind about what she believed to be the case in respect of her rights and it does not touch at all on the facts on which that view is based. As is clear from the authorities above mentioned, what is in the mind of each proprietor is not relevant to the issue.

 

I turn now to deal with the different periods of possession.

 

(a) 1918 - 1955. This was the period when the pursuer's great grandfather and grandmother owned Ardsheiling as both a house and for the running of the painting business and the pursuer's great grandfather also acquired Ashdene to make it easier for him to operate that business. The evidence that I have heard clearly shows that he could easily take his large sized ladders and handcarts out on to Links Road and that was an obvious benefit to him. Part of the evidence given by Mr George Graham falls into that period (1948/49). It is not surprising that he was under the impression that there was a communality of purpose to the whole thing and that he thought that the two properties were virtually one. At that stage they certainly were operating on that footing. As the defenders state on record (vide Answer 4 at page 6):-

 

"... any access taken by Thomas Nelson Greig prior to his death over Ashdene was taken in his capacity as heritable proprietor of Ashdene and was not attributable to any right of servitude in favour of the heritable proprietor from time to time of Ardsheiling."

 

As is pointed out in Cusine and Paisley at para 2.07, the general rule in relation to servitudes is res sua nemini servit, that is to say the owner of one plot of land cannot create a servitude in favour of that plot over other land held by him as proprietor, even if it is held on a separate title. Thus anything that Mr Graham can speak to of what happened during this period is irrelevant to the question of the creation of a servitude. As long as the two properties were owned or part owned by the same person then no servitude could be created between them.

 

(b) 1955 - 1987. This marks the period when the family business was taken over by the pursuer's grandfather on the death of the pursuer's great grandfather until his own death in 1987. It also marks the period when ownership of the two properties was split between the pursuer's grandfather and his grandfather's sister, Mrs Isabella Welsh. It is evident that the Minute of Agreement which brought all that about provided that the two separate properties were to be conveyed to the respective new owners subject to certain conditions. Ardsheiling was to be sold by public roup specifically "without right of access to Links Road, Earlsferry through the ground of Ashdene". So even if Mrs Welsh's subsequent disposition in her favour of Ardsheiling was simply silent about restricting her entry to the High Street only, what she personally was entitled to do vis-a- vis her brother would have had to have been understood and interpreted in light of their Minute of Agreement, ie as positively disabling her from taking any right of access of the kind that she subsequently claimed in her Affidavit so long as her brother lived at Ashdene. Ashdene itself, which was to be sold directly to her brother, was to be sold "with no access from Ardsheiling through the garden of Ashdene to Links Road". Although the disposition in his favour of Ashdene may make no mention of being entitled to prevent access from Ardsheiling, during this period it has to be understood and interpreted in light of the former Minute of Agreement so far as the actions of the siblings inter se are concerned. Thus as long as her brother was living at Ashdene, Mrs Welsh had personally bound herself not to take access from her property through the garden of Ashdene to Links Road. That remained the position up until 1977 when the disposition in her favour was recorded and which expressly restricted access by the owner of Ardsheiling to access from the High Street only. The restrictions contained within these deeds must create an added, if not impossible, burden on the pursuer to show that the volume of Mrs Welsh's adverse possession of Ashdene during this period amounted to an assertion of right. It could be argued that the amount of possession that she was permitted by her brother during his lifetime meant that his personal right to object to her presence in his garden had been unexercised or unenforced for over 20 years and had thus been extinguished by the long negative prescription under Section 8 and Schedule 3 of the Act. While that might apply to the period 1955 to 1977, in 1977 the recorded disposition in Mrs Welsh's favour appears to over-ride that and to restrict access to the High Street in a way that creates a real burden or condition on her title. If that is so, then the owner of Ashdene's right to prevent access would be imprescriptible (cf Gordon on Scottish Land Law at para 22-82). There are therefore certain difficulties in approach here for the pursuer that were left untouched and unexplored in the submissions made on his behalf.

 

Suffice it to say at this point, that in any event, the evidence showed that the predominant use of the gaps in the fence was by her brother to allow access to his business and to allow him to store items connected with it in the grounds of Ardsheiling. As to the use made of Ashdene, while I could not reject any witness as not credible, I place most reliance on the evidence given by Mrs Carol Cummings in the whole case. She was an impressive, careful witness who had the most intimate and longest knowledge of the comings and goings between the two properties. She stood up well to a prolonged cross-examination on all the matters raised by Mr Sanders as suggesting that she was a prejudiced witness with an axe to grind. She actually came over as the exact opposite, giving a balanced and objective view of the circumstances under scrutiny. The pursuer, Doctor Gardiner and Mr Graham, were to a large extent giving evidence of their recollections of what they remembered through the eyes of a child. Mrs Cummings lived there both as a child and as a young adult and has a more mature and rounded view of the circumstances. While I am prepared to accept from the pursuer and his witnesses that Mrs Welsh did go out the back gates, I cannot find that she did so very frequently, given that her other cleaning jobs were in the High Street, there was no great gain in distance in going out the back and the gates themselves were padlocked in the winter. She could only have gone out that way in the better weather when she found it easy to do so, ie the gates had been left sufficiently insecure for her to move them. Given her brother's fanaticism about keeping the gates properly shut, this cannot have happened too often. I accept too from Mrs Cummings that if these comings and goings of her aunt had happened, they would not have been visible to her parents from the downstairs part of Ashdene and that fact must cut down the effectiveness of Mrs Welsh's possession in establishing any right. Moreover, I accept from Mr Graham that brother and sister had been part of a close family and that their relationship was "blended as much by business as by blood." While Mr Greig remonstrated with his sister if he found her weeding in his garden, his actions never went beyond that and he no doubt appreciated that he was able to make use of her ground to assist in running the painting business and may have treated her occasional sorties into his property, insofar as he was aware of them, as a quid pro quo for his own use of her land. This is where the family dimension to this arrangement cuts in and negatives any possibility of Mrs Welsh's possession being as of right. Thus as far as the above period is concerned there was no possession that went beyond tolerance.

 

(c) 1987 - 2007. During this period Ashdene was occupied by Mrs Welsh's brother's widow, Mrs Joan Greig until her death in 2001. Her daughter Carol Cummings then took over as executor-nominate and sold the property to the defenders in 2002 and they have made use of it intermittently ever since as a holiday home. I have considered whether or not the defenders' actions in 2005 in blocking off the gaps in the fence with another fence meant that Mrs Welsh's user of the back garden of Ashdene ceased at that point to be open and peaceable. The text books suggest that it did not so cease (vide Cusine and Paisley at para 10.17 and the unreported Sheriff Court case cited of Abel v Shand, Stonehaven Sheriff Court, December 4^th 1997). I am content to agree with that, given the very short period in which the pursuer allowed the new fence to remain. Possession during this period would only come to an end on judicial interruption, ie under Section 4 of the Act, the taking of appropriate proceedings to challenge possession. Where, as here, the prescriber is the one who has taken proceedings to assert his right, it must surely be the case that the act by the defenders of lodging a Notice of Intention to Defend in respect of those proceedings would constitute for them the taking of appropriate proceedings. If that is correct, then the cut off point here would be 2 October 2007 when they lodged a Notice of Intention to Defend. I see from 6/1/2 of Process, the Disposition in favour of Carol Cummings that her mother obtained confirmation to her husband's estate on 3 September 1987 so although there was no exact evidence of when he died, I can take it that it must have preceded that date. Therefore when possession ceased by judicial interruption on 2 October 2007, there had already been a period in excess of 20 years in which the rear garden ground in Ashdene had been the subject of some degree of possession by Mrs Welsh and latterly by the pursuer after she died in 2006. The pursuer can therefore found on the correct length of possession during this period but again, due to the evidence given by Carol Cummings, he cannot show that it is of sufficient volume and character to establish a positive servitude in his favour. While it might be arguable that the family dimension that I have already highlighted as being at work in period (b) was less strong during period (c), as Mrs Welsh and Mrs Greig were not related by blood and sometimes found it difficult to get on with each other, even here there was evidence from the pursuer's mother, Ella Greig, that her mother in law, Mrs Greig would have been lost without Mrs Welsh next door. They needed each other's company. Mrs Cummings said that her mother let Mrs Welsh walk her dog. So there was obviously some intercourse between them and any possession by Mrs Welsh of Ashdene's lower garden ground would have to be assessed against what was still a family background. But what really counts against the pursuer's case here is the lack of any acceptable evidence to show that the use to which Mrs Welsh put the lower garden next door was frequent enough to establish possession as of right. The times she came to greet family visitors and to see them off again would obviously be tied up with when such visits took place and would in any event be explicable in terms of what might be expected to happen with a family on such occasions. Her weeding of dandelions would depend on there being dandelions to weed, ie such activities could not take place throughout the year but only for part of the year. By 1979, according to Mrs Cummings, when Mrs Welsh was in her 70s, she was only going to the Harvey Watts on specific occasions, limited to two or three times a year. Just as important as this built-in infrequency in these comings and goings is the fact that more often than not the occupants of Ashdene were not aware of what Mrs Welsh was up to. I accepted the defenders' evidence that they had not been aware of Mrs Welsh's presence on their property any time that they were there. I also accept the evidence of Carol Cummings that neither she nor her mother could see what was going on in the back garden from the downstairs rooms in Ashdene. Her mother, anytime that she had come across Mrs Welsh weeding in Ashdene, had taken up the same attitude as her late husband and told her to refrain from doing it. All this hardly amounts to a sufficient volume of adverse possession over 20 years.

 

In my view the pursuer has not established his case. Although there are pleas to the relevancy by both sides, neither was argued before me in the submissions that I heard and I have accordingly thought it sufficient to assoilzie the defenders rather than to dismiss the case against them as irrelevant. The case was not without complications and I accordingly certified as suitable the employment of junior counsel at the proof. I have otherwise continued the matter of expenses to a further hearing.