Scottish Sheriff Court Decisions

2014SCBAN10

 

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT BANFF

 

Judgement

Of

Sheriff Philip Mann

In Causa

Robert Oscar Sidebottom and Susan Irene Sidebottom, Spouses, residing together at Crannabog Farm, Rothienorman, Inverurie, Aberdeenshire, AB5 8XA

Pursuers

Against

Mr James Jonathan Green and Mrs Pamela Helen Green, spouses, residing together at Backhill of Smiddyburn, Folla Rule, Rothienorman, Inverurie, AB51 8UY

First Defenders

And

Sir George Ian David Forbes-Leith, residing at Tifty House, Fyvie, Aberdeenshire

Second Defender

Banff 16 May 2014

The sheriff, having resumed consideration of the cause:-

A.        Finds the following facts to be admitted or proved:-

1.         The pursuers are Robert Oscar Sidebottom and Susan Irene Sidebottom, Spouses, residing together at Crannabog Farm, Rothienorman, Inverurie, Aberdeenshire, AB5 8XA.  They are farmers.  They own heritable subjects known as Croft of Cowhill, Fyvie Aberdeenshire being the subjects described in and disponed by the Disposition by the Right Honourable Alexander John Baron Leith Fyvie in favour of Robert Duncan dated Thirteenth and recorded in the Division of the General Register of Sasines for the County of Aberdeen on Seventeenth both days of May Nineteen Hundred and Twenty One.  Along with members of their family the pursuers farm  Croft of Cowhill.

2.         The first defenders are Mr James Jonathan Green and Mrs Pamela Helen Green, spouses, residing together at Backhill of Smiddyburn, Folla Rule, Rothienorman, Inverurie, AB51 8UY.  Backhill of Smiddyburn is the property registered in the Land Register of Scotland under Title Number ABN107421.

3.         Backhill of Smiddyburn is shown on the plan annexed to the initial writ in this case.  It is shown dissected by a green line.  Croft of Cowhill is also shown on the plan annexed to the initial writ.  It lies to the east of Backhill of Smiddyburn.  It is shown shaded dark grey and dissected with a red line which is a continuation of the green line dissecting Backhill of Smiddyburn.

4.         This is the relevant section of the plan annexed to the initial writ.  It is hereafter referred to as “the plan”:-

5.         The second defender is Sir George Ian David Forbes-Leith, residing at Tifty House, Fyvie, Aberdeenshire.  He owns the ground between Backhill of Smiddyburn and Croft of Cowhill.  This ground is also shown on the plan dissected by the red line which is a continuation of the green line dissecting Backhill of Smiddyburn.

6.         The pursuers purchased Croft of Cowhill in 1988.  They purchased it along with other agricultural property which they have farmed along with it as one agricultural unit.

7.         The first defenders purchased Backhill of Smiddyburn on or around Fourth March 2011.  They purchased it from Doctor Alan Pike.

8.         On Croft of Cowhill there are the ruins of a former farmhouse which, when occupied, was accessed by a roadway which followed the route shown by the green and red lines on the plan (which route is hereafter referred to as “the route”).

9.         When they purchased Croft of Cowhill the pursuers had been given to understand that those subjects enjoyed a right of access over the route.  The pursuers began exercising access to Croft of Cowhill over the route as soon as they entered into possession of the croft in December 1988.

10.       Initially the pursuers exercised access by foot but from August 1990 they exercised access both by way of foot and by way of vehicles of various types, including agricultural vehicles.

11.       The last date upon which the pursuers took access through Backhill of Smiddyburn over that part of the route shown coloured green on the plan was 6 February 2011 which is more than 20 years after they began exercising vehicular access.

12.       Throughout, and continuously during, that period of more than twenty years the pursuers and members of their family regularly took access by way of the route through Backhill of Smiddyburn and the intervening ground owned by the second defender to Croft of Cowhill but the frequency depended upon the time of year and the agricultural requirements of the pursuers.  When there was livestock on Croft of Cowhill to be tended to access was taken on a weekly, and frequently a daily, basis.  When there was no livestock to be tended to on the croft access was taken generally on a monthly basis for general maintenance purposes, including fencing.  Occasionally, others authorised by the pursuers took access to the croft over the route.  Occasionally during winter months it was not possible to use the route for weeks at a time because of adverse weather conditions.  This was the case between the end of November 2010 and January 2011.

13.       It is possible for the pursuers to access Croft of Cowhill by an alternative means through their own ground at certain times of year and during favourable weather conditions when ground conditions are also favourable.  The pursuers have accessed the croft by that alternative means but the main access to the croft throughout the period of more than twenty years already identified was over the route.

14.       Dr Pike, the predecessor of the first defenders as owner of Backhill of Smiddyburn, was aware of the pursuers’ use of the route as a means of taking access to Croft of Cowhill.  On 16 December 2003 his solicitors wrote to the pursuers on his behalf offering to pay them a sum of £2,000 in exchange for, inter alia, a discharge of what was described as “the existing servitude”.  This offer was rejected by the pursuers.

15.       In 2010 Dr Pike placed Backhill of Smiddyburn on the market for sale through the agency of Messrs Strutt and Parker.  On 28 August 2010 Mrs Sidebottom, one of the pursuers, wrote to Strutt and Parker pointing out that there was a right of access through the property and requesting that this be brought to the attention of prospective purchasers.  Messrs Strutt and Parker received instruction from Dr Pike to disclose the contents of the letter to any viewers of the property.

16.       On 10 February 2011 Dr Pike swore an affidavit confirming to the best of his knowledge and belief that the access through Backhill of Smiddyburn had not been used as a vehicular access to property beyond Backhill of Smiddyburn other than by the Fyvie Estate during the entire period of his ownership of Backhill of Smiddyburn.  This affidavit was sworn in connection with the sale of that property.

17.       Dr Pike never prevented the pursuers from taking access to Croft of Cowhill over the route through Backhill of Smiddyburn.  There were no impediments that prevented that access whilst Dr Pike owned the property.  A fence which was erected across the route at the boundary between Backhill of Smiddyburn and the second defender’s property was fashioned into what is known within farming circles in the area as a “yankie” gate which could be, and was, opened to allow passage over the route.

18.       The second defender has never prevented the pursuers from taking access to Croft of Cowhill over the route through the ground intervening between Backhill of Smiddyburn and Croft of Cowhill.  He has facilitated that access by leaving the route unploughed as it passes through his property.

19.       The second defenders are preventing the pursuers from taking access over the route through Backhill of Smiddyburn.  They are doing so by maintaining locked gates within their property.

20.       These proceedings are the first and only judicial proceedings concerning the pursuers’ use of the route for the purpose of taking access to Croft of Cowhill.

B          Finds in fact and law:-

1.         The pursuers’ use of the route for the purpose of taking access to Croft of Cowhill has been exercised as of right.

2.         The pursuers’ use of the route for the purpose of taking access to Croft of Cowhill has been exercised for a continuous period of twenty years openly, peaceably and without judicial interruption.

C.        Finds in law:-

1.         The pursuers have possessed a servitude right of access for pedestrian and vehicular traffic over the route through Backhill of Smiddyburn for the benefit of the property known as Croft of Cowhill.  The existence of that servitude as so possessed is exempt from challenge.

Therefore, repels the first defenders’ pleas in law so far as not already repelled; sustains the pursuers’ first plea in law and finds and declares that there exists over the heritable subjects ALL and Whole the lands and estate of Backhill of Smiddyburn, Folla Rule, Rothienorman, Inverurie, Aberdeenshire, more particularly described in and disponed by a Disposition by Sir Andrew George Forbes-Leith in favour of David Cyril Eric Swarbrick, dated Third and recorded in the Division of the General Register of Sasines for the County of Aberdeen on Fourteenth both days of September Nineteen Hundred and Seventy Nine, and now registered under Title Number ABN107421 in the Land Register for Scotland and belonging to the first defenders, a servitude right of access for pedestrian and vehicular traffic in favour of the heritable subjects ALL and WHOLE the lands and estate of Croft of Cowhill in the parish of Fyvie and County of Aberdeen being the subjects described in and disponed by the Disposition by the Right Honourable Alexander John Baron Leith Fyvie in favour of Robert Duncan dated Thirteenth and recorded in the Division of the General register of Sasines for the County of Aberdeen on Seventeenth both days of May Nineteen Hundred and Twenty One and belonging to the pursuers and that on or along the route marked green on the plan annexed to the initial writ, the relevant portion of which is reproduced in finding in fact 4 herein, leading from the said land at Croft of Cowhill to the public highway; meantime, reserves consideration as to whether or not it will be necessary to grant decree in terms of the pursuers’ craves 2 and 3, supported by their pleas in law 2 to 5 inclusive and the question of expenses and appoints parties to be heard on the reserved matters on 5 June 2014 at 10:00am within the Sheriff Court, Low Street, Banff.

 

 

Sheriff Philip Mann

Note

1.         Introduction

1.1       This is an action in which the pursuers seek to have it declared that they have established a servitude right of access to their croft known as Croft of Cowhill through the first defenders’ property known as Backhill of Smiddyburn.

1.2       The route which the pursuers claim to have used for the purpose of access passes over land which intervenes between the pursuers’ property and the first defenders’ property.  This intervening land belongs to the second defender who has been called for his interest.  The pursuers do not seek any declarator or other award against the second defender.  The second defender has not defended the action.

1.3       The pursuers maintain that they have used the access route passing through the first defenders’ property from August 1990 for a continuous period in excess of twenty years and that this use has been as of right and open, peaceable and without judicial interruption.

1.4       The first defenders deny that the pursers have so used the access route and deny their claim to have established a servitude right.

1.5       The first defenders have no personal knowledge of the situation during the prescriptive period as they became the owners of Backhill of Smiddyburn only after the end of that period.

2.         The Evidence

2.1       Several witnesses gave evidence at a proof on 16 and 17 January 2014.

A         For the Pursuers

2.2       Mrs Sidebottom was the main witness for the pursuers. She spoke of use of the access route through the first defenders’ property from immediately after she and her husband bought Croft of Cowhill in 1998 until the first defenders blocked off the access in March 2011.  She said that when they had purchased the property they had been told that it enjoyed a right of access through Backhill of Smiddyburn.  Initially, access was exercised on foot because the then owner of Backhill of Smiddyburn had planted young trees on part of the access and the pursuers did not want to damage them.  However, in August 1990 the second defender, who owned the ground intervening between the two properties, wrote to the owner of Backhill of Smiddyburn and requested that the trees be removed.  The trees had been removed immediately and the pursuers had then commenced use of the access route for vehicular traffic.  Mrs Sidebottom spoke of using the access route regularly but with varying degrees of frequency during the period from when the trees had been removed until when the first defenders had blocked the route.  When there was livestock on Croft of Cowhill the access route would be used on a daily basis to get to the croft in order to tend to the livestock.  When there was no livestock on Croft of Cowhill access would be taken less frequently but at least on a monthly basis, and sometimes on a weekly basis, for the purpose of attending the croft to carry out tasks of routine maintenance and the like.  Mrs Sidebottom said that the access was occasionally impassable because of snow but this would not last for more than two months at any one time.  Mrs Sidebottom acknowledged that it was possible to access Croft of Cowhill through a field in their own ownership and that access had been taken via that field on occasion.  However, the field was very wet and was often impassable.  Additionally, using that field for access potentially put them in breach of conditions attached to certain land management subsidies.  Mrs Sidebottom said that she had last properly used the access track on 6 February 2011.  She remembered this date because it was her grandson’s birthday.  She had gone through Backhill of Smiddyburn on a quad bike.  A tractor and dung spreader had also gone through it.  Mrs Sidebottom maintained that Croft of Cowhill had been accessed through Backhill of Smiddyburn for 100 years.  She referred to a farm map, 5/10/2 of process, which clearly showed the track through Backhill of Smiddyburn.  She said that the second defender had never stopped the pursuers using that part of the access track which went through his ground.  The pursuers had last set out to use the access track round about 18 March 2011.  On that date the first pursuers obstructed their access.  The first defenders thereafter denied the pursuers access through Backhill of Smiddyburn by locking the gates and refusing to open them.

2.3       Mr Sidebottom also gave evidence.  He was the husband of Mrs Sidebottom and one of the pursuers.  Mr Sidebottom gave evidence about cutting back a hedge on that part of the access route passing through Backhill of Smiddyburn.  This was done in April or May 2010.  It had been done because vehicles were being damaged by the hedge as they passed along the route.  By reference to a photograph he said that at the same time he had used a digger to scrape back some of the earth and grass, which he described as “clod”, covering the access.  The intention had been to remove all of the clod but it had been obvious straight away that the ground underneath was hard and he had decided to abandon that task so as not to disturb the ground.  He said that his digger weighed 8 tons yet it had left no tyre marks on the ground.  By reference to another photograph Mr Sidebottom described a makeshift gate over the access which was a piece of fencing which could be rolled back.  He described this as a “bodge”.  Other witnesses had described this as a “yankie gate”.  He said that the bodge had been in use for quite a long time.  It had been a nuisance and therefore he had installed a proper gate in about the spring of 2009.  He said that he had never been stopped going through the gate.  He confirmed that he considered that he had the right to go on the Backhill of Smiddyburn property with his digger to maintain the hedge because it was on the pursuers’ access to Croft of Cowhill.

2.4       Tim Kidner, a 50 year old farmer, gave evidence that he had done contracting work for the pursuers over the years. He recalled not being able to use the route through Backhill of Smiddyburn because of the presence of small trees.  He had used an alternative route to Croft of Cowhill.  He could not recall using the route through the first defenders’ property.

2.5       George Elphinstone, a 48 year old agricultural salesman and adviser, gave evidence that he visited the pursuers on many occasions to sell them agricultural products.  He had visited Croft of Cowhill on 3 or 4 occasions over a period of twenty years to look at grass fields and advise on weed spraying.  He had never gone to the croft on his own.  He had gone with Mr Sidebottom in his landrover.  They had gone over the first defenders’ property between the house and steading and then on through ground belonging to someone else.  He said that there had never been any problem using that track.  He remembered there being a gateway but not a solid gate.  There had been nothing that had stopped them using the access route.  He referred to wires and posts that had to be pulled over to get through the access.  He referred to this as a “yankie gate”, which was a “cute” and very common way of making a gate in Aberdeenshire.  He said that at some point he might have gone to Croft of Cowhill by way of an alternative route.

2.6       Gerald Banks, a 65 year old agricultural consultant gave evidence that he had advised the pursuers over many years since 1993.  In that capacity he had visited them on several occasions during the 1990s.  He had gone to Croft of Cowhill in 1998.  He had been taken there by Mr Sidebottom.  They had gone through the first defenders’ property.  Mr Sidebottom had got out of his vehicle to open gates.  He recognised the access route from a photograph, 5/5/1 of process.  He knew of the alternative access route to the croft over field 16.  This was not an advisable route because it was so wet.  It was passable in dry weather.  For example during the year 2013 it would have been useable because it had been a dry year.  However, in 2012 it would have been impassable because it had been so wet.  He had never accessed the croft by that field but had come out of the croft by that field at the end of a tour of the croft in 1998.  He was aware of the common practice in Aberdeenshire of using a makeshift gate of posts and wires that could be unwound.

2.7       The pursuers also relied on the affidavit evidence of Robert Jon Sidebottom, Steven Andrew Sidebottom, Lisa Jenkins, Barbara Gibbons, Robert Adams and David Duncan.  These were numbers 5/2/3, 5/2/4, 5/2/5, 5/2/6, 5/2/7 and 5/3/3 of process.

B          For the First Defenders

2.8       James Green, one of the first defenders, gave evidence.  He was a 40 years old helicopter instructor and examiner.  He and his wife had purchased Backhill of Smiddyburn from Dr Pike in March 2011 and had moved into the property in about May 2011.  He had asked Dr Pike about the gates on the property and Dr Pike had said that these went back to the time when Fyvie estate had taken access through the property.  Dr Pike had said that other neighbours claimed access through the property but that they had never used it during his period of ownership.  Mr Green had never seen any evidence of access having been taken through the property.  No one had taken access during the first defenders’ period of ownership.  On 18 March 2011 Mrs Sidebottom had telephoned his wife demanding that the gates on the property be opened so that she could take immediate access through the property as she had a right of access.  She had been told that this was totally contrary to Mr Green’s information and that access would be denied.  The Sidebottoms had never used the access since he and his wife had purchased the property.  Since that time the Sidebottoms had accessed Croft of Cowhill via field 16.  They had used that access with 4 wheel drive cars, tractors, a forklift truck and a digger.  Mr Green confirmed that he had no knowledge of the property in the twenty year period from August 1990.

2.9       David Strang Steel gave evidence for the first defenders.  He was a 52 year old Estate Agent with Messrs Strutt and Parker.  He had marketed Backhill of Smiddyburn on behalf of Dr Pike.  The property had been sold to the first defenders.  He had visited the property during May 2010.  Photographs had been taken on 28 May 2010.  He had seen no evidence of access having been taken through the property.  He had received a letter from Mrs Sidebottom.  This was number 5/4/3 of process.  Mrs Sidebottom claimed access through the property.  She referred to Dr Pike having been obstructive as regards the access and wanted Strutt and Parker to advise any prospective purchasers of her right of access.  He had referred this letter to Dr Pike but Dr Pike had said that no such right of access existed.  Mr Steel had not responded to the letter.  Dr Pike had instructed that the content of the letter be disclosed to any viewers.  He was aware that Dr Pike had said that there was an alleged right of access but that he had said that there was no such right of access.  Mr Steel said that he was not necessarily surprised that Dr Pike had offered money to the Sidebottoms for a discharge in relation to the access.

2.10      James Masson gave evidence for the first defenders.  He was a 78 year old farmer.  He had farmed a neighbouring farm, known as Springleys, for 52 years.  He could see Backhill of Smiddyburn from his property which was at a higher elevation.  He was familiar with Croft of Cowhill.  He said that access to the croft was through the fields.  In 1961 there had been an access through Backhill of Smiddyburn.  It had been a tractor track made up with stones from the fields.  That access had been used from 1961 to about 1979.  The postman had used that track until 1979 when the track was ploughed up.  No one had used the access through Backhill of Smiddyburn since 1979.  In particular, he had never seen the Sidebottoms drive through Backhill of Smiddyburn.  He said that the track through the second defender’s ground had been removed at least thirty years ago.  The second defender had not left the track in place for the Sidebottoms.

2.11      Graham McIntosh gave evidence for the first defenders.  He was a 52 year old self-employed fencing contractor.  He had erected gates at Dr Pike’s address in May 2010.  He was familiar with Backhill of Smiddyburn because he had lived there from 1969 to 1974.  He had then moved across the road to a nearby property known as Backhill of Foula where he lived until he was 18 years of age.  He thought he had left that property in 1981.  He said that when he lived at Backhill of Smiddyburn there had been no way to drive through it to Croft of Cowhill.  After he had lived there tractors would drive through the property, between the house and steading, by way of a muddy track to get to a potato field.  The track, which ran through Fyvie Estate ground, was eventually ploughed up in the early 1970s.  Although he had gone to live elsewhere in 1981 he had continued to run his business from Backhill of Foula.  He could not remember when he had last seen anyone use the track to go to Croft of Cowhill.  The last time he had been at Backhill of Smiddyburn was just before Dr Pike left.  He had been there to repair gates, to cut down a tree and to repair a piece of turf.  Someone had taken the gates off.

2.12      Two witnesses were called to give evidence on behalf of the first defenders at a commission held before me as commissioner on 24 October 2014.

2.13      The first witness was the second defender Sir George Forbes Leith.  He confirmed that he owned the field intervening between Backhill of Smiddyburn and Croft of Cowhill.  He had inherited the property from his father in 2000.  At that time, he was not aware of any right of access across his field.  He confirmed that he had had a right of access to his field through Backhill of Smiddyburn between the house and steading.  He had not known about it until Dr Pike had approached him for a discharge.  He gave it up when Dr Pike approached him.  His field had been occupied by a tenant, Norman White, until about 5 or 6 years ago when Sir George took the field in hand.  He identified 5/1/4 of process as the discharge of servitude right that he had signed for a consideration of £200.  Until he took the field in hand he visited it about once a year.  Thereafter he visited it about once a month.  He had never seen anyone use his field for access.  At the same time he had never stopped anyone going across his field.  He had left a strip in the field unploughed.  He agreed that that was to allow access to continue over that part.  The strip led from Backhill of Smiddyburn to Croft of Cowhill.   He referred to email correspondence between himself and Mrs Sidebottom.  This had not been lodged but no objection was taken to its use in evidence.  The correspondence disclosed that Mrs Sidebottom had requested that the strip of ground through his field be left unploughed and he had agreed to that.

2.14      The second such witness was Dr Alan Pike.  He had owned Backhill of Smiddyburn from April or May 1991 until February 2011 when he sold the property to the first defenders.  He confirmed that he had sworn an affidavit in connection with the sale of the property to the effect that to the best of his knowledge and belief the track through Backhill of Smiddyburn had not been used as a vehicular access to the property beyond Backhill of Smiddyburn, other than by Fyvie estate, during his entire period of ownership.  He still maintained that position.  He confirmed that he had obtained a discharge of an access right from the second defender.  He had obtained this simply to remove uncertainties about the access.  He maintained that access could not have been taken through his property because of the existence of a fence that had been there since before he purchased the property.  No one, to his knowledge, had used a right of access over his ground.  He confirmed that in 2003 his solicitors had corresponded with the pursuers’ solicitors.  In the course of that correspondence he had offered to pay the pursuers’ reasonable legal expenses for what was described as a “discharge of the servitude”.  He had also offered to pay the pursuers the sum of £2,000 towards the re-routing of the roadway. He agreed that the letter referred to “the existing servitude” and also that it referred to Fyvie estate who would retain the right to use the access roadway in question.  He said that he had sworn the affidavit because the first defenders wanted an assurance that the track was not used for access.  He said that there was no evidence that they would not have bought the house had he not done so.  He said that he had no evidence that he was pressured into doing it.  He confirmed by reference to a photograph that a digger had made marks on his property.  He had no idea who had taken the digger on to his property because he had not been there at the time.  He had not organised for any work to be done on his property by use of a digger.

2.15      The first defenders also relied on the affidavit evidence of Norman White which is number 6/1/2 of process.

3.         Submissions

A         General

3.1       Both parties lodged written submissions at my request and I am grateful to them for that.  Neither party sought a hearing for the purpose of making oral submissions.  Both were content to rely on their written submissions.  The submissions are in process.  They are number 29 for the pursuers and number 28 for the first defenders.  I do not intend to rehearse the submissions in detail but I will summarise and paraphrase them.

3.2       The parties were in agreement as to the applicable law.  It was partly governed by statute and partly governed by the common law.

3.3       The statutory provision was to be found in section 3(2) of the Prescription and Limitation (Scotland) Act 1973.  It provided as follows:

“If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge.”

In order to establish the acquisition of a servitude right of access the pursuers had to demonstrate, in terms of that section, that they had used the access for a continuous period of at least twenty years openly, peaceably and without judicial interruption.

3.4       Additionally, at common law, the pursuers had to prove that they had used the access as of right and not as a result of tolerance on the part of the owner of the property.

B          The Pursuers Submissions

3.5       Mr Mohammed, advocate, for the pursuers referred to paragraph 10.13 in the textbook Servitudes and Rights of Way by Cusine and Paisley for a discussion about continuous possession.  He referred to the case of Carstairs v Spence 1924 SC 380 (2^nd Division) for the proposition that it was not necessary that full use of the servitude is established throughout the prescriptive period.  He referred to paragraph 10.16 of Servitudes and Rights of Way for a discussion as to open possession and paragraph 10.17 of that textbook and the case of Abel v Shand Stonehaven Sheriff Court, 4 December 1997 referred to therein, for a discussion of peaceable possession.  He referred to paragraph [18] of Lord Eassie’s judgement in the case of Aberdeen City Council v Wanchoo 2008 SC 278, Servitudes and Rights of Way at paragraph 10.19 and paragraphs 26 and 27 of Lord Turnbull’s judgement in the case of Baron of Bachuil v Paine [2012] CSOH 161 for a discussion of use as of right.

3.6       Mr Mohammed urged me to accept the evidence of Mrs Sidebottom which he said was sufficient on its own to prove the acquisition of a servitude right.  There had been no suggestion from the defenders that there had been any judicial interruption.  Parties were agreed that the pedestrian use of the access before August 1990 did not assist the pursuers.  But, Mrs Sidebottom had spoken of using the access for vehicular traffic from August 1990 until March 2011.  The character and frequency of the use described by Mrs Sidebottom was sufficient to enable the court to hold that the use had been open and continuous throughout that period and had been exercised as of right.  There was evidence, by way of the letter from Mrs Sidebottom to Strutt and Parker, that Dr Pike had caused difficulties for the pursuers from time to time in their use of the access.  However, this had not stopped the pursuers using the access.  The matters referred to in the letter had not been put to Dr Pike and so the court could readily infer that this was not a case where the parties were in a state of perpetual warfare in regard to the pursuers’ use of the access.  Mr Mohammed submitted that despite the matters referred to in the letter the pursuers’ use of the access was nonetheless peaceable.  Parties were agreed that there had been no judicial interruption of the pursuers’ use of the access.

3.7       The other evidence led on behalf of the pursuers lent support to Mrs Sidebottom.

3.8       Mr Mohammed said that the defenders argued that the pursuers did not use the access as described by Mrs Sidebottom or that if they did then the use was not peaceable on account of the difficulties outlined in the letter from Mrs Sidebottom to Strutt and Parker.  The difficulty with that approach was that it was inconsistent and contradictory.  There was a substantial difficulty for the defenders arising from the fact that the letter had not been put in evidence to Dr Pike.  The only explanation for that must be that the defenders did not want to risk Dr Pike having to accept that his evidence about the pursuers not using the access was untruthful.

3.9       Mr Mohammed relied on the evidence relating to Dr Pike offering money to the pursuers for a discharge of their servitude right.  Dr Pike would not have made that offer if it were truly the case that the pursuers had not been using the access.

C         The First Defenders’ Submissions

3.10      Mr McCallum for the first defenders also referred to the textbook Servitudes and Rights of Way at paragraphs 10.11 to 10.19.  He further referred to a 2008 paper “What Happened in 2008” by Messrs Gretton and Reid and to Lord Eassie’s judgement at paragraphs 17 and 18 in Aberdeen City Council v Wanchoo on the question of use as of right.

3.11      Mr McCallum pointed out, as had been explored in evidence, that the pursuers’ case initially included an assertion that they had a servitude right of access over the roadway in question by virtue of their title.  This ground of action had been abandoned.  Mr McCallum claimed that this point was important in relation to the attitude of the pursuers and the nature of the possession which they claimed.

3.12      Mr McCallum submitted that the first defenders did not accept that there had been use of the access by the pursuers for the necessary period of twenty year.  Even if there had been, that use was a) wholly infrequent and b) not of the “right kind”.

3.13      Mr McCallum maintained that the earliest date for the start of the prescriptive period was some time in August 1990.  This was the date when the second defender had written to the then owner of Backhill of Smiddyburn seeking removal of the trees that were said to be impeding vehicular access through the property.  He maintained that there had been no evidence as to the exact date when the trees were removed following that letter.  Taking August 1990 as the start of the prescriptive period, the end of the prescriptive period would have been August 2010. However, the evidence was that the property had been put on the market by that time by Dr Pike.  The evidence of Dr Pike was that the pursuers had never used the access.  It could be seen from the photographs of the property taken by Strutt and Parker preparatory to putting the property on the market that there was no evidence of any tyre marks that would suggest any movement of vehicles through the property.  Therefore, if there had been use of the access it did not extend to August 2010.

3.14      Mr McCallum maintained that the pursuers’ evidence of use of the track was negatived by the evidence of Dr Pike.  Dr Pike had sworn an affidavit at the time of the sale of the property to the first defenders in which he deponed that the pursuers had not used the access track.  He had confirmed the content of the affidavit during his evidence on commission.

3.15      Mr McCallum maintained that the terms of the letter written by Mrs Sidebottom to Strutt and Parker, referring to difficulties over the pursuers’ use of the access, demonstrated that that use, if indeed there had been such use, was not peaceable.  Mrs Sidebottom had written about an ongoing dispute over a number of years and about the pursuers’ use of the access having been obstructed.

3.16      Mr McCallum accepted that there had been no evidence of judicial interruption.

3.17      As to the question whether the pursuers’ use of the access had been as of right Mr McCallum’s submission was that the pursuers’ use of the access, if there had been such use, had been of the wrong type.  Furthermore, Dr Pike did not have any knowledge of the pursuers’ use of the access and the letter written by his agents to the pursuers’ agents offering to pay for a discharge of the pursuers’ right could not be taken to demonstrate that he knew of the pursuers’ actual use of the access.  What had been in the mind of the pursuers and Dr Pike at that time was that there was an existing right of access, by virtue of title, which had not been exercised and it was this potential use that Dr Pike was seeking to avoid by making the offer that he did.

4.         Discussion and Decision

4.1       My decision in this case comes down to a question of credibility and reliability.

4.2       I found Mrs Sidebottom to be both credible and reliable.  Her evidence was that the pursuers commenced vehicular use of the access upon removal of the trees that were preventing that use.  The trees were removed immediately after the second defender had written the letter to the then owner of the property requesting their removal.  This was in August 1990.  Her evidence was that the pursuers used the access continuously until February 2011.  I am satisfied that that establishes use for the necessary period of twenty years.

4.3       The first defenders admit on record that when the now ruined farmhouse on Croft of Cowhill had been occupied access to it had been taken through Backhill of Smiddyburn.  This lends support to Mrs Sidebottom’s evidence that she had been given to understand that there was a right of access through Backhill of Smiddyburn to the croft.  It helps to explain why the pursuers decided to take access through someone else’s property and why they would think that they had the right to do so.

4.4       There was no suggestion anywhere in the evidence that the pursuers’ use of the access was in any way clandestine.  I am satisfied that the frequency, regularity and nature of the use spoken to by Mrs Sidebottom points clearly away from such a conclusion.  I accepted Mrs Sidebottom’s evidence, as focussed in her letter to Strutt and Parker, about Dr Pike having been obstructive in regard to the pursuers’ use of the access but I equally accepted her evidence that Dr Pike’s obstructiveness had not resulted in the pursuers not being able to use the access.  I drew the inference from this and from the absence of any evidence from Dr Pike on the subject that the pursuers’ use of the access was nonetheless peaceable.  Parties were agreed that there had been no judicial interruption.  I am equally satisfied that the pursuers used the access as of right.  The nature, frequency and regularity of the pursuers’ use points firmly to that conclusion.  Additionally, Mrs Sidebottom’s evidence was that the pursuers had been told when they bought Croft of Cowhill that they had a right of access through Backhill of Smiddyburn.  They had commenced their use of the access, initially on foot, immediately upon the purchase.  Even though it may have turned out that there was no such right within the pursuers’ title to the property the pursuers were clearly asserting a right when they commenced to use the access.  Mrs Sidebottom’s letter to Strutt and Parker is further evidence that the pursuers were asserting their right to use the access.  In short, I am satisfied that Mrs Sidebottom’s evidence establishes the necessary ingredients for the acquisition of a servitude right of access by prescriptive use.

4.5       Mrs Sidebottom was supported by Mr Sidebottom whom I found to be also credible and reliable.  I accepted the evidence of Mr Sidebottom, supported by George Elphinstone about the fence across the access being a “yankie” gate and therefore accept that that did not impede the pursuers’ use of the access.

4.6       The pursuers’ witnesses George Elphinstone and Gerald Banks were both somewhat vague in their evidence about the use of the access but I did not find that surprising given that the times when they would have had the need to use the access were both infrequent and irregular.  To that extent these witnesses were less reliable but I accepted their evidence as being supportive of Mrs Sidebottom.

4.7       The affidavit evidence relied on by the pursuers also supported Mrs Sidebottom’s evidence.  Although little weight can be attached to the affidavit evidence the pursuers’ case is amply made out without it.

4.8       I did not find Tim Kidner’s evidence to be of any particular assistance.

4.9       I simply did not believe Dr Pike when he said that the pursuers had never used the access during the period of his ownership of Backhill of Smiddyburn.  To my mind it was very telling that he had offered to pay the pursuers for a discharge of what his solicitors described as “the existing servitude”.  Mr McCallum suggested that this offer was made in relation to what was thought to be a potential right of access, presumably by virtue of title, but I do not think that that is borne out by the correspondence.  Even if the solicitors had intended that “the existing servitude” referred to a right that had already been established, by title or otherwise, and had fallen into disuse the fact that Dr Pike’s offer was rejected lends support to the assertion that the pursuers were using the access.  The correspondence, coupled with Mrs Sidebottom’s evidence, clearly suggests that the pursuers were using the access and that Dr Pike knew about it.  Furthermore, the correspondence suggests that the access was regarded as a matter of right.  I found Dr Pike’s choice of words when giving evidence about the swearing of the affidavit in connection with the sale of Backhill of Smiddyburn to be puzzling.  In particular, I found it curious that he said that “there was no evidence that they would not have bought the house” had he not sworn the affidavit, and that he “had no evidence that he was pressured into doing it”.  That suggested to me that he felt that the provision of the affidavit was in some way questionable.

4.10      Whilst I found Sir George Forbes Leith to be credible I did not find him to be reliable to the extent that he maintained that the pursuers had not used the access.  He readily admitted that he had acceded to a request by the pursuers not to plough a strip of his field which was claimed by the pursuers to be a continuation of the access through Backhill of Smiddyburn.  I cannot see why he would have agreed to that other than to facilitate the pursuers’ access.  Additionally, Sir George’s evidence was that he visited the field in question infrequently and irregularly and so he could not have had any day to day knowledge as to who might have been taking access along the unploughed strip.

4.11      I found the first defenders’ witness James Masson to be credible in the sense that he did not come to court seeking to mislead.  But I found him to be unreliable when he spoke about the pursuers not using the access.  This was principally because he was firmly of the view that the access strip through Sir George’s field had not existed for many years when the other evidence including the photographic evidence demonstrated otherwise.

4.12      I found the first defenders’ witness Graham McIntosh to be credible.  However to the extent that he suggested that the pursuers had never used the access I found him to be unreliable.  It is not outwith the bounds of possibility that he had simply never seen the pursuers using the access.  In any event, I did not accept his evidence as negativing the very clear evidence given by Mrs Sidebottom.

4.13      Mr Green was a credible witness but since he did not own the property during the relevant period his evidence was effectively neutral.

4.14      Norman White’s evidence was given by affidavit to which I can attach very little weight.

4.15      I should say something about the photographic evidence.  The photographs were very helpful in showing the layout of the area and the location of the disputed access.  They did not really assist beyond that.  My recollection of Mr McCallum’s use of the photographs in examining the witnesses was to assert that the photographs did not show any tyre marks.  In general, the first defenders’ witnesses accepted that assertion but I do not place any great weight on that and I place less weight on it than I might have if the witnesses had been responding to a question whether or not the photographs showed any tyre marks.  There was evidence that one or two of the photographs showed what might have been tyre marks and I could see that for myself.  However, Mr Sidebottom gave evidence that the solum of the access was so hard that vehicles would not leave tyre marks on it even where there was a covering of grass.  I accepted Mr Sidebottom’s evidence about the hardness of the ground.  I have no expert evidence to guide me on the extent to which vehicular traffic would have left marks which would have shown up on photographs but even if Mr Sidebottom’s evidence is completely wrong in this particular regard and falls to be rejected it may be the case that the photographs were taken at a time when there had been no vehicles on the access for a period and the grass had recovered to the extent that no tyre marks remained visible.  The photographic evidence does nothing to displace Mrs Sidebottom’s very clear evidence about the use of the access.

4.16      There was no dispute that the first defenders have blocked the pursuers’ use of the access.  The pursuers would be entitled to the remedies that they seek in their craves 2 and 3 but I feel that it would be appropriate, subject to what parties might wish to say on the matter, to allow the first defenders an opportunity to undertake to the court that they will open up the access and not thereafter prevent its use by the pursuers.  I have set down a hearing for parties to address me on these matters

5.         Expenses

5.1       I have not been addressed on the question of expenses.  I have reserved that matter meantime and parties can address me at the forthcoming hearing.