Sheriff Appeal Court finds for existence of septic tank servitude by prescription in dispute between landowners

About this case:

• Citation:
  [2025] SAC (Civ) 28
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Graham and Sally Whamond originally succeeded before the sheriff in their action against Eliasz and Ilona Klasa in establishing an implied servitude of drainage created when title to the pursuers’ property was broken off from the original subjects. They cross-appealed against the sheriff’s decision that an alternative route to establishing a servitude by positive prescription would mean that the servitude expired in 2016.

The appeal was heard by Sheriff Principal Aisha Anwar KC, with Appeal Sheriffs Patrick Hughes and Gregor Murray. C MacColl, solicitor, appeared for the pursuers and T Young, solicitor, for the defenders.

Necessary for enjoyment

The pursuers’ property, Spring Garth, and the defenders’ property, Willow Cottage, were once part of a single undivided property owned by the British Railways Board. Neither property was ever connected to the mains sewer system, with an underground septic tank buried in a field forming part of the subjects of Willow Cottage serving Spring Garth. In 2016, the previous owners of Willow Cottage, the Mansons, became aware that the original tank required replacement, and reached an oral agreement with the pursuers for the construction of a new tank closer to Spring Garth but still within the boundary of Willow Cottage.

The defenders, who purchased Willow Cottage from the Mansons in November 2021, maintained that the Mansons failed to disclose the existence of a servitude right of drainage in favour of Spring Garth. After they wrote to the pursuers in November 2023 requesting that they remove the tank, the pursuers commenced proceedings before the sheriff seeking to establish an implied grant of servitude at the point that the break-off disposition in respect of Spring Garth was made in 1966.

It was held by the sheriff that an implied servitude existed over Willow Cottage, and that the defenders were put on notice by virtue of a 1989 disposition. As the servitude was implied and not express, the subsequent variation of its route in 2016 was effective to retain the right. He also held that the servitude could be constituted by positive prescription of 20 years, and in that scenario the servitude to the original tank would have been abandoned through non-use in 2016.

For the appellants it was submitted that the sheriff erred in his assessment of the pursuers’ drainage contractor, Mr Whitworth, and failed to uphold an objection to his opinion evidence. He also erred by concluding that any implied right was necessary for the comfortable enjoyment of the dominant tenement, and in finding that the existence of the original tank was obvious. On prescription, no evidence was led to show when the original tank was installed, and deviation of the existing route would not be permissible to maintain the original servitude.

Clearly and unequivocally

Delivering the opinion of the court, Sheriff Principal Anwar said of the evidence for the age of the tank: “We agree that based on Mr Whitworth’s factual evidence as to the condition of the tank, ‘anyone’ might conclude that it was ‘old’; however, we do not agree that such a specific expression of opinion as to the age of a septic tank is a matter of ordinary life or experience. As Mr Whitworth was originally employed by the pursuers and the Mansons (who remain in dispute with the defenders), a legitimate question might have arisen in relation to the impartiality of his opinions but that does not appear to have been explored in evidence. For these reasons, Mr Whitworth’s opinion evidence was inadmissible.”

Considering the effect on the test for implied grant, she continued: “It was mere assertion or ‘bare ipse dixit’. Without it, there was insufficient evidence before the sheriff to allow him to conclude that the original septic tank was in use in 1966 and therefore that an implied servitude right of drainage existed.”

Turning to the cross appeal on positive prescription, the Sheriff Principal said: “We accept that the continuous use of the servitude right of drainage was not capable of being readily observed. The system operated effectively without the need for the septic tank to be emptied, replaced or maintained until 2016. However, the acts of possession and the circumstances in this case were sufficient to establish the nature of the right asserted; a prescriptive right was established by 1997 and its usage continued until 2016.”

On whether that right was varied rather than extinguished, she concluded: “There was no basis upon which to conclude that, by agreeing to relocate the septic tank to a new location within the grounds of the servient tenement, the pursuers had clearly and unequivocally intended to abandon a servitude right of drainage from Spring Garth to Willow Cottage and deny their successors in title that right. The defenders submitted that the old septic tank was beyond repair and had been infilled. Be that as it may, the difficulty associated with re-using the route of the original pipes and the location of the original septic tank does not render it impossible.”

The court therefore sustained both the appeal and the cross-appeal in part. In postscript, Sheriff Principal Anwar noted that the impracticality of this outcome, and added: “In practical terms, the parties will need to choose whether the pre-2016 arrangements should be reinstated or whether it would be more expedient and cost effective for them to execute deeds giving legal effect to the present arrangements and bind their successors.”