Dumfries sheriff finds for existence of fuel storage servitude in family dispute over gas canisters in courtyard

About this case:

• Citation:
  [2025] SC DUM 11
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Mungo Bovey KC

Marco Fusi and three other pursuers originally raised the action against Tina Fillipi and others, acting as trustees on behalf of the TFT Trust, seeking declarator that they owned the courtyard between their property and the defenders’ cottage, which was abandoned in May 2025. However, the defenders lodged a counterclaim for declarator that they had an essential servitude right of fuel storage, for which a proof was fixed.

The case was heard in Dumfries Sheriff Court by Sheriff Mungo Bovey KC. McLean, solicitor, appeared for the pursuers and Powell, solicitor, for the defenders.

Doing so for decades

The pursuers were the proprietors of the subjects forming 126/127 Drumlanrig Street in Thornhill, purchased by Quntilo Fusi, the father of the first defender and grandfather of all the other parties. At the same time, he purchased properties on New Street, with the courtyard at the rear of 2 New Street forming part of the pursuers’ subjects. The properties fell into separate ownership when the first defender inherited 1 and 2 New Street from the widow of Quintilo Fusi following her death in 1988.

Historically, the defenders’ properties were heated by coal. Brick coal bunkers were historically situated in the courtyard, replaced by a metal bunker in 2013, without judicial interruption. As there was no mains gas in the village, in August 2015 the defenders fitted a combi-boiler at 2 New Street to provide heating and hot water, and four gas canisters were placed in the courtyard to service and supply the property. The footprint of these canisters was less than that of the old brick coal bunker.

On 30 May 2017 the second pursuer wrote to the defender to object to the sales particulars of 2 New Street, which had been put on the market, and request the removal of the canisters. The fourth defender phoned him to explain that they would not be removed, as the defenders had a right to store them there legally and had been doing so for decades. No action was taken to have the canisters removed until the raising of the pursuers’ claim in December 2024.

In evidence, the pursuers acknowledged that both coal bunkers and gas canisters could be said to be used for the same purpose but took the view that gas installation was not storage in the same way as coal and was an extension of the original burden. The presence of the canisters was a substantial obstacle to vehicular access in the courtyard and could affect the sale of the property in future, as a purchaser might be reluctant to buy with the canisters creating confusion.

No effort to stop

In his decision, Sheriff Bovey said of the requirements to establish a servitude: “Tolerance is to be judged objectively, with consideration directed to the nature, quality and frequency of the user, rather than to the mind of the proprietor of the servient tenement. The defenders took entry to the cottages on 3 November 1990 at which time the occupants of 2 New Street had been storing coal in brick bunkers on the courtyard for many years. Informed by the discussion at paragraph 10.16 in Paisley and Cusine, Servitudes and Rights of Way (1998) I have no doubt that the bunkers met the requirements of openness and peaceableness.”

He added: “Here the owners of the servient tenement have been well aware of the coal bunkers since they came into ownership. In my view, notwithstanding the small element of encroachment involved, the storage of coal in the years from 1990 can found a servitude right. I hold that by 3 November 2010 the occupants of 2 New Street had been storing coal on the pursuers’ land for a continuous period of 20 years openly, peaceably and without judicial interruption.”

Considering whether the addition of gas unduly increased the burden of the servitude, Sheriff Bovey said: “The metal coal bunker and four gas canisters would be substantial obstructions to vehicular access in the courtyard but, as they project into the yard to the same extent, neither the canisters nor the bunker alone affects the issue of vehicular use. The pursuers are not near to obtaining vacant possession; the photographs show rubbish bins in the courtyard reflecting a practice on the part of the occupants of the cottages no doubt fortified by long usage. In my view, the extent to which the owners of the yard are excluded from it by the presence of the metal coal bunker and the four gas tanks is very marginal, far from negating the concept of ownership.”

He concluded: “Every servitude arises because the servient tenement has failed to take steps to stop the usage. I am not clear that the motive of the pursuers for not doing so earlier is relevant. No effort has ever been made to have coal storage stopped and I have held that the addition of gas does not materially increase the burden of that exercise.”

Sheriff Bovey therefore found that a right of servitude of fuel storage had been established and put the case out for a hearing on the wording of the order to be pronounced.