Michael Upton

On the one hand, the list of known servitudes in such standard works as the Stair Memorial Encyclopaedia, Gordon & Wortley on Land Law and Gloag & Henderson do not acknowledge a servitude of taking timber.

On the other hand, on authority of Garden v Earl of Aboyne (1743), if not also Harvie v Stewart (1870) – and of Bell and Hume – and going by the work of historians such as Professor Christopher Smout at St. Andrews (Smout et al., History of the Native Woodlands of Scotland (2005)) – the conclusion in yesterday’s piece was that the servitude has long been known to the law. Here we explore some aspects of its scope.

For what purposes may timber be taken? In line with the general principles of servitudes, the legitimate purposes are of course limited to the praedial or non-commercial needs of the dominant land, whether that is for timber for building, or firewood for burning.

From where may timber be taken? There are various positive servitudes which do not entail that the dominant owner can unilaterally choose where on the burdened property his right is to be exercised. For instance, with pasturage or grazing, or a right of way, the burdened owner retains some power to tell his neighbour where he may graze, or what route he shall take over the burdened ground. The servitude of parking a vehicle may be another example: Lothian Amusements Ltd v The Kiln’s Development Ltd, [2019] CSOH 51.

Professor Smout and his co-authors record the same issue in dispute at Monaltry on Deeside in 1773. Tenants of the lands of the attainted Jacobite Earl of Mar sought to exercise servitude rights to take timber from the Earl of Fife’s pine-woods, which extended to within a mile of them, but were required by his factor to do so only from the remotest, furthest part of the burdened lands – ten or twelves miles distant.

However, whether or not such directions accord with the law, the further off the burdened owner may send his benefited neighbour, the stronger the argument that in order to be effective, the servitude must also involves rights of passage – in 1773 for beasts of burden, but maybe today for vehicles: on this topic, see generally Paisley, Rights Ancillary to Servitudes (2022).

What timber may be taken? Broadly there are three kinds. First, there is timber that has fallen. Secondly, depending on the species, there is timber that may be taken by pollarding or coppicing. Coppicing was once much practised, and is enjoying a resurgence for bio-fuels. Thirdly, there is the felling of living trees. The inherent restriction to exercise civiliter may mean that, as far as suffices for the dominant owner’s reasonable needs, he must choose the method which is least prejudicial.

What an express grant permits depends of course on its terms. As for constitution by prescriptive possession, the nature of the usage will define the nature of the right – but in practice a right to take lying timber seems likelier. After all, however openly and peaceably you go about coppicing or felling another man’s standing trees, it seems unlikely that you that will be able to carry on for twenty years without judicial interruption.

That leaves lying timber. This includes the commonplace of what has long since been felled, only to be left - and of course windblow or windfall. Those sound like mere scraps for scavengers. But in practice they can be the optimal timber, at least for firewood; long-seasoned, ready without the hazard or cost of felling. I once heard a witness being challenged that felled timber long left lying must be water-logged and undesirable, and I wondered whether the cross-examiner had a fire-place.

Beech and ash make the best firewood – and some even burn conifer logs – but on the ground oak and sweet chestnut last longest. For instance, in the mid-nineteenth century Lord President John Inglis had an oak planted, on whose fallen trunk a century later my mother was photographed, pregnant with me – a tree trunk which was cut up as fine fire-wood when I was 40 years old. In the 1850s John Inglis re-planted John Trotter’s Midlothian woods, including a great chestnut which came down in the 1960s – certainly not later than the Great Gale, which you may recall blowing on 15 January 1968 (what today is called ‘climate change’). I could show you the trunk where it still lies today, and its wood would warm a man well, were he so ill-bred as to take a blade to such a survivor.

Depending on the age of the tree (older trees have more durable heartwood), the species, how it lies, and how damp the ground, fallen timber may dry and season wonderfully. Athenaeus was right: “Old wine to drink, old books to read, old friends to trust, old wood to burn.”

To conclude: here we have talk of cases from 1743 and 1870, and of Hume and Bell – is this topical? – or is it sterile antiquarianism? It can be hard to advise clients what the bench will think of eighteenth-century cases, or the practice of even earlier centuries. Like many people throughout human history, some of our fellows think that we are living in uniquely modern times – such that right, wrong and human needs are so changed, that one sees case-law from only 25 years ago questioned purely on the ground that it is old. What value then has a precedent that has stood for nigh 280 years? After all, the only thing that’s certain about the past is this: it isn’t coming back – is it?

Others think our forefathers knew a thing or too. A prescriptive servitude right to take firewood might be a useful relief against rising heating bills. They say ‘firewood warms you twice’. But that’s not the half of it; what with cutting, hauling, splitting and stacking, it warms you at least five times.

As with other energy policies, all you need is to start twenty years ago.

The author thanks Dr. Elspeth Macdonald, MICFor, and John Stirling, WS, 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; Mr. Upton would be happy to provide them on request.]

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