Army officer who claimed seaside home benefited from servitude loses Inner House appeal

Major Douglas Soulsby, the pursuer and reclaimer, challenged the Lord Ordinary’s decision that he had not used the strip of land frequently enough to be able to establish a servitude over the property owned by the defenders and respondents, Richard and Natalie Jones.

The reclaiming motion was heard by the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Malcolm. MacColl QC appeared for the reclaimer and D Thomson QC for the respondents.

Little evidence

The strip of land over which the pursuer claimed he had a servitude lay between the walls of his house in Elie, Fife, and that of the defenders. It was contended by the pursuer that he and his predecessors in title had used that land to carry out maintenance of the wall of his property and therefore that he had acquired a servitude of prescriptive use for access, cleaning, and maintenance.

The pursuer further contended that an extension built by the defenders on the relevant boundary wall of their property, which was greater in size than a conservatory that had previously stood there, interfered with his exercise of this right, and sought an order for its removal and an interdict against any future construction.

It was found by the Lord Ordinary that the only regular use of the strip during the prescriptive period was for window cleaning, lasting only 5 or 6 minutes, between 5 and 10 times a year. Given the infrequency of use, and the fact that permission had been obtained from the proprietors at other times the strip was accessed, it was determined that there was little evidence that could give rise to an inference that a servitude right was being exercised.

In relation to the erection of the new extension, the Lord Ordinary held that it would encroach on a servitude had it been established, and that the respondents had failed to establish that the pursuer had acquiesced to its construction. The defenders cross-appealed against this aspect of the decision, particularly the Lord Ordinary’s finding that they had not acted in good faith when they proceeded with construction.

Counsel for the pursuer submitted that the Lord Ordinary had erred in finding that the pursuer’s property did not benefit from a servitude. No contrary evidence had been led on the use of the strip, and the possession proved ought to have been enough to indicate objectively that a right had been asserted during the prescriptive period.

Principle of freedom

Delivering the opinion of the court, Lord Carloway began by noting: “The pursuer’s first plea-in-law, in so far as it suggests that a servitude has been created as a ‘necessary incident’ of the pursuer’s right of property, is self-contradictory. A servitude of the nature claimed cannot be created by necessity. In this context the situation differs from implied grants of servitudes of access to land in cases where subjects held on one title have been divided.”

He continued: “There is no authority for such a concept. It would contradict the principle of freedom in the use of land. It has the potential to allow one owner to create a servitude by building a wall along his boundary without any agreement from his neighbour.”

Evaluating the Lord Ordinary’s handling of the evidence, he said: “The evidence which the Lord Ordinary accepted was of very limited use indeed. It came nowhere near approaching the level of use of a small section of ground which would have been needed to support a contention that the pursuer was asserting a right, far less what the nature of that right might be.”

He went on to say: “She commented, correctly, that limited use by itself creates difficulties for a person claiming a right of a nature never advanced prior to the dispute which ultimately led to the litigation. There is no sound basis upon which the Lord Ordinary can be faulted on this central aspect of the prescription element of the case.”

Lord Carloway concluded: “The use did not assert a right. It was correctly attributable to mere tolerance or permission, as would be expected of a neighbour in these circumstances.”

Briefly addressing the defenders’ cross-appeal, he added: “Describing the defenders’ decision to proceed as being one not taken in good faith may be seen as harsh. Given that the encroachment does not prevent inspection, maintenance and repair and that re-establishing of the 900mm width would cost some £58,000, the court may have revisited the Lord Ordinary’s conclusion on this aspect of the case.”

For these reasons, the appeal was refused. No formal orders were made in respect of the cross-appeal given the circumstances.