Sheriff finds servitude of drainage implied for split off railway cottage with septic tank on neighbours’ land

About this case:

• Citation:
  [2024] SC FOR 46
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Bovey

Pursuers Graham and Sally Whamond sought declarator that they enjoyed the servitude right over the land belonging to defenders Eliasz and Ilona Klasa, who but for the intervention of the court would have removed the septic tank from their land in 2023. The defenders submitted that the pursuers had failed to meet the high bar for establishing an implied servitude.

The case was heard by Sheriff Mungo Bovey KC in Forfar Sheriff Court. McColl, counsel, appeared for the pursuers and Young, counsel, for the defenders.

Detailed observation

The pursuers’ property, Spring Garth, was a former railway master’s cottage dating back to the 1860s that was owned by the British Railways Board until 1966. When they sold the cottage, they retained a piece of land containing the tank to which the cottage’s waste was drained. That piece of land was first sold in 1988 and acquired by the defenders in November 2021. The defenders’ predecessors in title, the Mansons, bought the land in 2001 and built a property, Willow Cottage there.

In 2016, the Mansons discovered that the septic tank carrying waste from Spring Garth went through their field, and that the old tank needed replaced. The pursuers arranged for a new tank to be built in a corner of the Mansons’ field near to Spring Garth, but nothing was put in writing. Evidence about the installation of the new tank was provided by the second pursuer, the Mansons, and their drainage contractor Mr Whitworth, who had taken the view that it was not possible to install the new tank on the pursuers’ property.

For the pursuers it was submitted that all of the requirements for the creation of an implied servitude were met. The defenders submitted that the evidence of Mr Whitworth, who was not presented as a skilled witness, was incapable of bearing the weight the pursuers sought to put on it. Further, the arrangement was not an open and obvious feature of the property.

In his decision, Sheriff Bovey said of the criticisms of Mr Whitworth’s evidence: “Mr Whitworth has 16 years of experience working in septic tanks. He has worked for the owners of both properties albeit not for the defenders. His assessment of age is based on detailed observation. He discussed the age of the old tank when dealing with it in 2016. The fact that he accepted that it was difficult to estimate and that a wide range was possible though not his view adds to his acceptability as a specialist worker speaking within the scope of his specialism.”

Use remains the same

Looking at the test for an implied servitude, the sheriff noted: “The critical question that arises in the present case is the relationship between the two elements of use and necessity, the latter word being understood in the sense of reasonable necessity for convenient and comfortable enjoyment. The elements of use and necessity are intended as cumulative requirements. If anything it is necessity that is more important, because in some cases, where the two parts of the property that is divided were occupied together, there might be no actual use of the route claimed because another route through the servient part of the property was in fact used.”

He continued: “Awkwardly for the present case, neither use nor necessity is particularly obvious from visual observation of the lands here. Although I do not feel able to find that the Klasas were in fact unaware of the existence of the pursuers’ septic tank, I accept that purchasers might readily overlook it. However, I accept the evidence of Mrs Whamond and Mr Whitworth and conclude that the septic tank on the defenders’ land very much contributes to the convenient and comfortable enjoyment of the dominant tenement and that restricting the sewage outflow to the Whamonds’ property would be very much to the detriment of such enjoyment.”

Noting that the old tank was not legally unobserved, Sheriff Bovey said: “[The 1966 disposition] imposes a burden of any servitudes and rights of wayleave for laying and maintaining sewers, drains, pipes that may be laid in, through or across the defenders’ property. The purchaser is to satisfy himself as to the existence of such servitudes or wayleaves. The owners of the servient tenement were in my view very much put on notice as to the likely existence of exactly the kind of arrangement which existed and continues to exist.”

He concluded: “The dominant tenement has continuously put its waste through the servient tenement since the properties were separated. They need to do so in the required sense. In my view the essence of the need and use of sewage disposal remain the same. In the circumstances, I hold that by relocating the means by which they exercise this practice they did not abandon the right by implication.”

The sheriff therefore granted the declarator sought for the pursuers, although he rejected a secondary argument based on prescription.