Coastal enclave can be ‘land-locked’ for the purpose of rights of way
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A piece of land can be a ‘land-locked’ enclave, so as to have a right of way over a neighbour’s property on the basis of necessity, despite the enclave being on the coast and adjoining the foreshore and the sea. Such public rights as there may be over the foreshore and the sea do not necessarily suffice to provide its owner with necessary access to such a property.
Elgin Sheriff Court has sustained a claim to a right of way of necessity in Urquhart v J. Rhind & Co. on 23 May, John Urquhart and others as the owners of an enclave of land on the coast of Morayshire argued that even in the absence of any servitude rights of way, they had the right to go to and from their land to the public road which ran parallel to the coast, over the intervening farmlands of the defenders.
A right of way of necessity is a land-owner’s inherent, imprescriptible right of property to take access to his property to a public place over intervening land, by whatever was ‘the existing way’ when the subjects were first split off. Millie Bothy comprised four acres of land which had been split off from the landward estate in 1926, to be a coastal salmon-fishing station, immediately adjacent to the long sandy foreshore of Burghead Bay. The defenders were the successors in title to the 1926 granter.
The defenders argued that the subjects were not in fact an enclave, because it was possible to enter and leave them without crossing their farmlands to the landward. Whilst less convenient, the foreshore was available to the pursuers. Millie Bothy was bounded partly by the high water mark of the sea which was a public way. The pursuers also used routes through the coastal forestry plantations owned by Forestry and Land Scotland which were more suitable than routes over the defenders’ land.
Sheriff David Harvie held that “Whilst the pursuers currently benefit from temporary licences which permit access over the [forestry land] via another route, I am satisfied that such an arrangement is not a right.”
With regard to access to seaward, he held:
“Without further specification, the foreshore is not considered to be a public place. Whilst there was a provision [in the 1926 grant] allowing storage of items required for salmon fishing at reasonable places along the foreshore still belonging to the disponer during the salmon fishing season, there was no express right of access to the bothy along that part of the foreshore or across that part of the foreshore to the sea. Notwithstanding the defenders’ submissions, whilst there was evidence of cobles being launched near the bothy a short distance out to sea for the specific purpose of salmon fishing, there was no evidence led that it is possible to access the subjects from the sea. … Given the subjects were otherwise landlocked, I am satisfied that on the original lands … being divided in 1926, [the grantee] had a right to the necessary access for the enjoyment of the subjects along the existing way … to the public road. … As the right arises out of necessity, necessity dictates its duration. Whilst there is evidence that the pursuers … did have other means of access to the subjects via other forestry roads under either informal or time limited licence agreements, there is no evidence of there being any other means of access as of right at any time since 1926. I consider that, when they bought the subjects, the pursuers, qua owner, became entitled, of necessity, to obtain free ish and entry to it over the first defenders’ subjects. The essence of that right is that the pursuers should be able to get to the subjects from the public road. … Per Lord Adam in Louttit’s Trustees v Highland Ry Co (1892) 19 R. 791, the presumption is almost irresistible that land is sold with the existing access.”
The pursuers were represented by Michael Upton, advocate, and Anderson Strathern LLP. The defenders were represented by Giles Reid, advocate, and Morton Fraser LLP.
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