Sheriff Appeal Court holds no additional servitude rights beyond disposition created over Ross-shire petrol station

About this case:

• Citation:
  [2024] SAC (Civ) 41
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Derek Pyle

AC & IC Fraser & Son Ltd initially raised an action against Gordon Munro seeking to establish that he did not have a servitude right over a different route from the one contained in the disposition granted by his father Roderick Munro. The defender argued that, in addition to that servitude right, another had been created after the sale was completed for pedestrian access to the forecourt. The sheriff decided the first issue in favour of the pursuer and the second in favour of the defender.

The appeal was heard by Sheriff Principal Derek Pyle, with Appeal Sheriffs Thomas McCartney and Wendy Sheehan. Mure KC appeared for the pursuer and McLean KC for the defender.

Knowledge and acquiescence

In 1996, Roderick Munro sold part of a plot of ground comprising a petrol station adjacent to the A835 road while continuing to live at a house, Smithy Croft, forming the remainder of the plot. Alastair Fraser, now a director of the pursuer, acquired the petrol station, which was later transferred to the company he set up with family members Allan Campbell Fraser and Iris Campbell Fraser.

In the disposition, Mr Munro reserved a servitude right of vehicular and pedestrian access over the far southern end of the filling station ground, which was set out in a plan annexed to the disposition. However, from April 2009 to May 2011 the defender drove and walked over a different route to the A835 which began at the same point within Smithy Croft. After the sale had been completed, Roderick Munro asked that he and his wife be allowed pedestrian access across the forecourt of the filling station. Mr Fraser agreed to that. Roderick Munro passed on Smithy Croft to the defender in 2011 and died three years later.

After proof, the sheriff held that positive prescription had not been established for the alternative access route, nor did the doctrine of acquiescence apply. He also decided that the pedestrian access route was one that had been in existence before the sale in 1996, and accordingly it had subsisted for a period in excess of the 20-year prescriptive period.

Senior counsel for the defender criticised the sheriff’s approach, noting that the route contained in the disposition was incapable of being used along its full length for vehicular access due to a stone retaining wall. The dominant proprietor had used the diverted route with the knowledge and acquiescence of the servient proprietor, which the sheriff ought to have taken to be sufficient in fact and in law to set up a variation of the vehicular access right.

For the pursuer it was submitted that it was clear from Mr Fraser’s accepted evidence that the pedestrian route was only used by Mr Munro and his wife out of a sentiment of good neighbourliness. There was no basis for the sheriff to conclude that the absence of an express right of access was a misunderstanding or oversight.

Mere facilitation

Sheriff Principal Pyle, delivering the opinion of the court, said of the defender’s appeal: “A plea of personal bar by way of acquiescence arises where one party fails to comply with an obligation in the contract and the other party does not object. The inaction by both parties creates in effect a variation of the contract. It follows, therefore, that to succeed the defender required to establish that the contract as contained in the 1996 disposition was varied by the inaction of the pursuer’s predecessor in title in the face of the actings of the defender to create and use an alternative access route.”

He continued: “It is plain that on the sale of the filling station the granter of the disposition wanted to have a right of vehicular and pedestrian access from there to the public road. That may have been because of a concern, imagined or real, about the legal status of the latter route. There is no need to speculate. The alternative route begins at the same place along the Smithy Croft boundary and ends only a few yards along from the terminus where entry to the public road is reached per the disposition. But it does not automatically follow that by way of the operation of acquiescence the contract and therefore the rights and obligations of singular successors as contained in the disposition have been varied.”

In relation to the pursuer’s appeal, the Sheriff Principal noted: “It is clear that the sheriff decided on the evidence that this was a case of permission being given by the proprietor of the servient tenement to the proprietor of the dominant tenement. If it was maintained that the word ‘permission’ means a mere facilitation and not taking any steps to stop the access, the defender ought to have moved to amend the finding in fact. Otherwise, we have to proceed on the basis of the plain meaning of the word.”

He concluded: “On the authorities cited by the pursuer it follows that the sheriff has erred in law in counting the period of that permission - to the date of the conveyance by Roderick Munro to the defender - for the purpose of computation of the period for positive prescription. The additional authorities cited by the defender do not assist his submission.”

The court therefore allowed the pursuer’s appeal and refused the defender’s appeal.