Michael Upton: Free fuel for heating – the Scots law

Michael Upton: Free fuel for heating – the Scots law

Michael Upton

I was raised in the last house on our road to be built with a fireplace. Ever since I was a lad, seeing houses built without hearths seemed one of the various aspects of modern Scots architecture that was foolish, and sad. How shall we talk to some late hour, without the fire of turf of the ancient tower? 

Or if not peats, then coal, or logs. How to come by them? A servitude is one way; rights to take coal and to cut peats are on the list of servitudes known to the law: Harvie v Stewart, (1870) 9 M. 129 and Stair, II, 7, 13. (For coal, that’s the common law, somewhat altered by the Coal Industry Nationalisation Act 1946 and the Coal Industry Act 1994).

But there’s nothing like a log fire. These days, we hear much talk of planting trees - though they say the best time to plant one is twenty years ago. The same is true if you want to obtain a servitude by open, peaceable and uninterrupted usage - the best time to start is twenty years ago: see the Prescription and Limitation (Scotland) Act 1973, section 3. What about a servitude to take firewood? 

Rankine thought not: Land-ownership (4th edtn., 1909). He objected that a servitude cannot depend on positive action by the burdened owner: see Paulus on Sabinus, Book XV; Justinian’s Digest at VIII, 2, 28 (if we’re still interested in what Roman law has done for us). Rankine plainly implied that the existence of a wood is a product of human action. 

Well, that is a large question. What makes a wood? The answer can be either providence, or the hand of man - or both, as where a wildwood is fenced against grazing - or where a man-made plantation is maintained by self-seeding. By far the greater proportion of Scotland’s woods are plantation. Myths aside, both the Lowlands and the Highlands may have been largely de-forested even before the Romans came: on this and much else here, see Professor Christopher Smout et al., History of the Native Woodlands of Scotland (2005). Perhaps 4% of the country is in any sense ‘wildwood’ - so Rankine can be forgiven for thinking of a wood as an artefact. But to the extent that nature creates woods, his argument against a servitude surely fails. Pasture may be sown, but that doesn’t stop us recognizing the servitude of grazing livestock. Still, Rankine might be applied in this way: to disallow taking planted timber, but allow taking what is naturally seeded. Yet a distinction dependent on knowing how a given tree came to be where it is surely unworkable. Where a land-owner planted a block of spruce, say thirty years ago, we might sympathize with his distaste at a neighbour’s hauling the timber away - after all, trees aside, there is surely no servitude right to take part of another man’s agricultural crop. (Paulus, On Plautius, Book XV: “A servitude cannot be imposed permitting us to pick apples” - in the Digest at VIII, 1, 8, if we’re still interested … ) But erected into a legal principle, such sympathy would have to apply equally in, say, a two-hundred-year-old beech-wood, half of which might be original plantation but half of it younger, self-seeded trees - where who shall say what was planted and what was not? A modern forestry undertaking is well protected by the unlikelihood of its either granting express servitudes, or acquiescing in a neighbour removing timber openly and peaceably for twenty years. 

However, Rankine is not alone. Neither Professor Duncan’s contribution on servitudes in the Stair Memorial Encyclopaedia, nor Gordon & Wortley on Land Law (3rd edtn.), nor the editors of Gloag & Henderson (15th edtn.) list such a servitude. All speak of ‘fuel, feal and divot’ as embracing only peat - as does Ross on Servitudes.

But more authoritative sources do indeed count “cutting timber” as a servitude: Bell’s Principles and Hume’s Lectures.

Cusine & Paisley judiciously consider both the servitude’s existence and Rankine’s logic to be moot points (Servitudes and Rights of Way) Their useful label for rights to take things away is ‘extractive servitudes’ - which along with pasturage and peats, can also embrace water, stone, heather, and sea-weed and flotsam (if not jetsam) (‘wrack and ware’). Extractive servitudes honour the principle that the burdened proprietor need do nothing; he is simply obliged to suffer the thing to be taken, insofar as it is present.

So, where there are trees, there might be such a servitude. And it has in fact been known to the law since at least 27 November 1734, when in Garden of Bellamore v Earl of Aboyne, M. 14,517,

“One having given by a writ under his hand, liberty and privilege to a neighbouring heritor to cut timber in his woods, for the use of the neighbouring heritor’s lands and tenantry, the Lords found this a real servitude, and good with possession against singular successors” - see also M. 10,275; n.b. Paisley, Rights Ancillary to Servitudes (2022), para. 3-105, footnote 946, & para. 6-052, footnote 322 provide references to the case papers in the National Records of Scotland.

Rankine tried to distinguish Garden as a case about coppicing - but there is nothing in the record to justify that: see again Cusine & Paisley. Consistently with Garden, a century later in Harvie Lord Deas said that ‘fuel, feal and divot’ could embrace not only coal but also “any other fuel”.

Nor does the case for the servitude end there. Professor Smout and his co-authors tell us that servitudes to take timber are in fact commonly encountered before the eighteenth century. To take just one of their examples - from as far west as the law’s writ ran - though disputed at times, the procurement of birlinn-building timber from Kintail and Knoydart by the MacDonalds of Sleat from at least the sixteenth century, seems by the eighteenth century to have been recognised as a servitude.

What in broad terms Smout recounts is that the recognition of such rights became rarer, as the proportion of plantation increased relative to wildwood; the landowners who from the eighteenth century began planting broad-leaved shelter-belts - which as an adornment of our landscapes we risk taking for granted - naturally valued their creations over those of providence. 

At the Bush in Midlothian in the 1760s, Archibald Trotter was reminding his tenants that, for a third offence of damaging plantation trees, the penalty was death: A.P.S. ii, 343, c. 8; James V, 1535 - though tillers of the soil who were caught giving vent to their remarkably widespread antipathy to the new woods seem in practice to have got away with a whipping at the door of Edinburgh’s Tolbooth: John Abernethy, Annals of the Bush (1930). 

Better transport and the demands of mining and industrialization raised timber’s value, prompting the improving land-owners to protect it - contemporaneously with the growth of agricultural populations, some of whom had long-inherited ideas of customary rights to free timber. 

The result was litigation about what the dominant owner or his tenants could take, for what purposes - such as that on Deeside between Lord Braco and the Farquharsons of Invercauld in 1760 (Smout again). But the de quo was that taking timber could be a servitude. Advantages have accrued to us all from the growing protection of absolute land-ownership in the Age of Improvement, but the fact that customary rights lost this particular battle or that, does not mean that the servitude was abolished by desuetude - even assuming that that is possible (though the servitudes of bleaching and lint-steeping are perhaps now on life-support). 

The conclusion is that the servitude of taking timber from woodland has long been known to the law.

Tomorrow in part two we shall consider what timber may be taken and how.

The author thanks Dr. Elspeth Macdonald, M.I.C.For., and John Stirling, W.S., for their comments on drafts of this article, responsibility for all errors in which is nonetheless his own.

[For brevity page references to texts have been largely omitted; the author would be happy to provide them on request.]

Michael Upton, FCIArb, FSAScot, is an advocate and arbitrator

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