Sheriff Appeal Court allows cross appeal in servitude dispute arising from re-division of previously united properties

About this case:

• Citation:
  [2023] SAC (Civ) 9
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff Sheehan

Stuart Logan, originally the pursuer in an action he raised against defender Andrew Irons, sought declarator that his property, the Auld Kirk in the parish of Dunbog, benefited from servitudes of aqueduct and access over the defender’s property, Beauty’s Land. Both parties contended that the sheriff had erred in fixing a proof before answer and that the issue could be determined at the conclusion of the diet of debate.

The appeal was heard by Sheriffs Principal Derek Pyle and Sean Murphy, along with Appeal Sheriff Wendy Sheehan. Reid, advocate, appeared for the pursuer and Tosh, advocate, for the respondent.

Separation anticipated

A servitude right over the defender’s property in favour of the pursuer’s property was created in September 1987. In September 1993, the pursuer’s property was disponed to the defender and his wife, who the next year acquired Beauty’s Land. The defender granted a standard security over the Auld Kirk in favour of the Household Mortgage Corporation, who in 2007 disponed it acting under a power in that security. Beauty’s Land was also disponed in 2007 by the defender.

The pursuer bought the Auld Kirk back in 2017 from a third party, while the defender purchased Beauty’s Land again in 2019. The pursuer sought to enforce the servitude rights originally granted to the Auld Kirk in 1987, which he maintained had not been extinguished when the properties came into joint ownership but instead had been suspended and came to be revived when the titles separated again in 2007. Esto the servitude right did not revive, a new one was created by implied grant when the Auld Kirk was conveyed in 2007.

It was submitted for the defender that confusion did not operate to suspend a servitude right temporarily except under a narrow exception, as found in Bell’s Principles, when the properties came to be held by the same person in two different capacities. As the pursuer did not aver this, his case on express grant was irrelevant. Further, the Household Mortgage Corporation did not have the right or title to grant an implied servitude in its role under the standard security.

For the pursuer it was submitted that the sheriff had erred in holding that various factual issues required resolution prior to determination of the legal issues between the parties. Bell’s approach allowed for the servitude to be revived if separation or disunion may be anticipated. The two properties had remained under separate titles and separation was clearly in contemplation by the defender. Further, the use of the septic tank installed as part of the aqueduct was one that was plainly necessary for the comfortable use of the property, which supported the creation of a new implied right should the express right not be revived.

Having determined that the sheriff erred in appointing the cause to a proof, the Sheriff Appeal Court went on to address the issues that arose for judicial determination.

Plainly necessary

Delivering the opinion of the court, Appeal Sheriff Sheehan said of the exception contended for by the pursuer: “This limitation or exception was considered by the Inner House in Donaldson’s Trustees v Forbes (1839) but was applied to very restricted circumstances where the servient and dominant tenement came to be held by the same proprietor but in different capacities. The proprietor was ‘in a manner dividing himself into two persons; not meaning to sink the dominant in the servient tenement, but keeping them quite separate’.”

She continued: “In such circumstances where there is only a separation of interests as set out at paragraph 3.41 of Gloag and Henderson, The Law of Scotland (15th Edition), confusion does not operate. The limited ratio of this decision does not assist the pursuer in the circumstances of this case where the heritable proprietors of both the burdened and benefitted properties are individuals, the titles are separate and the properties were acquired at different times.”

Turning to the esto position, the Appeal Sheriff said: “The heritable creditor’s obligation was to expose the property for sale and to enter into a private bargain whilst taking all reasonable steps to ensure that the subjects are sold at the best price which could reasonably be obtained. It follows, in our opinion, that the sale of the subjects for the best price, conveyed with the parts and pertinents, may in the right circumstances, involve the heritable creditor disponing an implied right of servitude over the defender’s retained subjects.”

She concluded: “In the present case, the servitude was expressly granted and was in use when the properties were split on 16 October 2007. The defender installed the septic tank system himself. There are no averments to put at issue the fact that it was in use prior to and at the point of division of the properties. The servitude itself is one which is plainly necessary for the convenient and comfortable enjoyment of the pursuer’s property. The defender pleads no contrary case which would require a proof before answer.”

The cross appeal was therefore allowed insofar as it related to the pursuer’s pleas in respect of an implied grant of servitude, with the defender’s appeal consequently refused.