Sheriff Appeal Court holds servitude right to single-track road did not include use of passing places

About this case:

• Citation:
  [2022] SAC (Civ) 9
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Marysia Lewis

The appellants, Ian and Ruth MacAllan, were granted a right of access over land now owned by the respondents, Ian, Grace, and Laura Arbuckle, when they purchased their property and argued that they enjoyed an ancillary right to use the passing places. The parties’ properties had once been part of the same estate that was subdivided when it was sold.

The appeal was heard by Sheriff Principal Marysia Lewis, sitting with Appeal Sheriffs Fiona Tait and Thomas McCartney. C MacColl, advocate, appeared for the appellants and Garrity, advocate, for the respondents.

Geographical extent

In 2016, the proprietor of the Carphin Estate in Cupar decided to subdivide and sell the estate. The appellants purchased the Mansion House in late 2016, and the respondents purchased the Lower Luthrie Farm early in 2017. The only means of pedestrian and vehicular access to the Mansion House was via a single-track road passing through the farm, over which the appellants were granted two servitudes in December 2016 and March 2017.

The areas on the cadastral plan marked as included within the servitude did not include the passing places or verges along the road. In 2018 the appellants raised an action for declarator and interdict against the respondents in which they made allegations of obstruction of their servitude right of access. The sheriff dismissed this action and determined that, in the absence of any ambiguity in the deeds and plans, the servitude right was restricted to the area highlighted on the plans.

Following the dismissal of their first action, the appellants raised a new action seeking declarator that they enjoyed an ancillary right to use the passing places and verges to the extent necessary to allow two vehicles to pass each other on the road, as well to interdict the respondents from obstructing them. The respondents counterclaimed for declarator that the appellants had no right of title to use their land beyond the defined rights.

The sheriff dismissed the appellants’ action and granted decree in the counterclaim, holding that that servitude right as defined in the title sheet was clear and unambiguous. She concluded that the rights the appellants were seeking were not truly ancillary to the servitude but merely an extension of the geographical extent of the servitude itself.

It was submitted for the appellant that the sheriff had erred in her entire approach to the case. They contended that a vehicle which could not make progress along the roadway in face of oncoming traffic because it must reverse all the way back to the start instead of back only to the most recent passing place could not be said to be enjoying the conferred servitude right, thus access to them was necessary for the comfortable use and enjoyment of the servitude.

Free from ambiguity

Delivering the opinion of the court, Sheriff Principal Lewis said of the sheriff’s approach: “The sheriff concluded that the grant was clear and unambiguous. We support her decision in that regard. The words used in the grant are precise and free from ambiguity – the benefited and burdened subjects are identified; a recognised servitude right of pedestrian and vehicular access is specified; and the route is described.”

She continued: “We endorse the sheriff’s conclusion that there is no need for evidence to be led regarding the character of possession and the use of the servitude at the time of the grant in regard to the nature of the right because they are of no relevance to the construction of the grant. The precision in the deeds and the cadastral plans identify clearly the extent of the geographical area benefitted and burdened by the servitude.”

Assessing whether any ancillary rights were necessary for the enjoyment of the servitude, Sheriff Principal Lewis noted: “The drafting involved in the disposition may have caused or contributed to the ongoing dispute because the grant makes no reference to a right to move onto and to use passing places and verges which are on adjacent land to enable other vehicles to pass. There is no provision as to rights and obligations in relation to the volume of traffic and the regulation of the flow of traffic through the use of passing places and verges.”

However, she concluded: “We acknowledge that a vehicle which cannot make progress along the roadway in face of oncoming traffic because it must reverse all the way back to the start instead of back only to the most recent passing place is inconvenienced – and no doubt sometimes significantly so – but we do not accept in light of the authorities that a right to move onto a passing place or onto the verges which lie outwith the burdened area to allow other vehicles to pass is necessary for the comfortable use and enjoyment of the servitude.”

The appeal was therefore refused on the basis that the sheriff had not erred in making her decision.