Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 161
P434/09	OPINION OF LORD TURNBULL in the cause NIALL JERVIS COLL LIVINGSTONE OF BACHUIL Petitioner; against YORICK PAINE and ANOTHER Respondents: ________________

Petitioner: Sandison QC; HBJ Claims Solutions

Respondents: Agnew of Lochnaw QC; Lindsays

12 October 2012

Introduction

[1] The petitioner in this action for interdict is the owner of heritable property on the Isle of Lismore. The respondents assert a right of servitude access over the petitioner's property, which they claim has been established by use, as of right, in excess of the prescriptive period.

[2] The petitioner challenges the existence of any such servitude right as is claimed, he challenges the right of the second respondent to be heard in this process and contends that certain of the averments made in support of the respondents' case are irrelevant, or lacking in specification and should not be admitted to proof. The case called before me on the Procedure Roll on the petitioner's first and second pleas in law.

[3] The petitioner is the present Baron of Bachuil. He and his family have been the heritable proprietors of the Bachuil Lands on the Isle of Lismore for generations. The first respondent is the uninfeft proprietor of an area of land known as Croft Ballimackillichan. The second respondent, the domestic partner of the first respondent, is said to be the tenant of Croft Ballimackillichan.

[4] Croft Ballimackillichan adjoins an area of land known as Ballimackillichan Farm. Both areas of land were previously part of the estate of Baliveolan and until the early 1980s were owned by a single proprietor, Robert Campbell-Preston. In 1983 the farm was sold to its tenant, Archie Campbell and in 1984 the croft was sold to its tenants, John and Dorothy Livingstone. The present owner of Ballimackillichan Farm is Archie MacColl and the respondents are his tenants in the farmhouse. In around 2008 John and Dorothy Livingstone granted a Disposition of Ballimackillichan Croft to the first respondent. That disposition awaits registration.

[5] The petitioner avers that a track which runs from the public road at Clachan to Portcharron and thence to the southern part of Ballimackillichan Farm gives the respondents access to the farmhouse. He also avers that they are able to use a continuation of that track to access the croft. Whilst the respondents appear to accept that they currently access the croft using the route referred to they say that there is an issue over their legal entitlement to use all of this route. They aver that they currently exercise their right of access as tenants of the farmhouse and from the farm land onto the croft by the agreement of the owner of the farm, Archie MacColl.

A further route is available between the public road and Croft Ballimackillichan. This route is by way of the entrance drive to the house on the Bachuil Lands, across its policies and across its open fields to a boundary fence and gate between the Bachuil Lands and the croft. It is this route which the respondents assert a right to use.

The Petitioner's Submissions

[6] Counsel for the petitioner submitted various criticisms of the case as pled on behalf of the respondents. He submitted that the case pled against the petitioner of res judicata was irrelevant and should not be admitted to proof. He submitted that the case pled against the petitioner of personal bar was irrelevant or insufficiently specific and should not be allowed to proceed to proof. He submitted that various other averments within the respondents' pleadings were irrelevant or lacking in specification and should not be admitted to proof and he submitted that the second respondent had no title to defend the proceedings.

Res Judicata

[7] Counsel for the petitioner submitted that the case pled by the respondents on res judicata was irrelevant. The case as pled was based on the outcome of an action heard in the Sheriff Court at Oban in 1899 in which the then proprietor of the Lands of Bachuil sought to interdict the then tenant of Croft Ballimackillichan from trespassing on the Lands of Bachuil for the purpose of accessing the croft. The then tenant and his son, who operated a shop on the croft tenanted by his father, were the defenders in the action. The route in question was said to be substantially the same route as featured in the present case. In that case the sheriff held, after proof, that:

"there is a public road or right of way leading from the highway at Bachuil, in the island of Lismore, through the pursuers lands of Bachuil and the croft at Ballimackillichan, in the occupation of the defender, John Livingstone senior, and thence to a public harbour or fishing station called Portnamorloch, situated in Locherkar Bay, on the northwest side of the island of Lismore, and the said road or way forms an access to the said croft of Ballimackillichan to the highway at Bachuil;"

Counsel pointed out that in 1899 the croft was still part of the estate of Baliveolan and the then heritable proprietor of that estate was not a party to the action. Counsel criticised the suggestion that the second respondent could be seen as some form of successor in title to the tenant in 1899 and submitted that the nature of the action adjudicated upon by the sheriff was quite different from the private servitude right which was the subject of dispute in the present case. He drew attention to the averments made on the petitioner's behalf at pages 27 and 28 of the Record to the effect that Portnamorloch had many years ago ceased to be a place to which the public had resort and that the public right of way had been extinguished by non-use for more than the prescriptive period. He pointed out that the respondents did not seek to assert the ongoing existence of a public right of way but sought to assert a form of private right deriving from that previous public character of the route. On his submissions none of the averments concerning the 1899 action should be admitted to proof and a claim of res judicata could not arise on the basis of the facts averred.

Personal Bar

[8] Counsel for the petitioner attacked the nature and extent of the averments made by the respondents in Answers 5 and 6, in so far as they purported to set out a claim of personal bar, all as reflected in the 10^th Plea in Law (as introduced by Minute of Amendment). The averments in Answer 5 related to a conversation said to have taken place in around December 2006. Those present were said to have been the petitioner's father (now deceased), his mother and the two respondents. At that time the petitioner's father was the heritable proprietor of the Bachuil Lands. The averments in Answer 6 related to work said to have been carried out by the first respondent at the request of the petitioner's mother at Bachuil House. These averments included a reference to a conversation concerning a track which ran across the fields between Bachuil House and Croft Ballimickillichan. It was claimed that during this conversation the petitioner's mother told the first respondent to use certain stones to hard core the track at a later stage and thereby implicitly recognised the existence of the right of access claimed. Counsel acknowledged that the petitioner's mother had been a joint executor of her husband's estate from around March 2008 and that things said by her in that capacity might be capable of founding a claim of personal bar. Various criticisms of the averments on this part of the respondents' case as set out in both Answers 5 and 6 were developed by counsel for the petitioner, which I will refer to in more detail later.

General Specification and Relevancy Points

[9] Counsel for the petitioner identified that certain averments made by the respondents set out, in relevant and specific terms, the basis upon which they claimed to be entitled to take access to Croft Ballimackillichan over the lands owned by the petitioner. These were the averments found in Answers 5 and 6 asserting that the first respondent's predecessors in title had taken such access openly, peaceably and without judicial interruption throughout the period of their ownership of the croft from 1984 until 2008 and that John Livingstone had done the same whilst previously tenant of the croft between 1962 and 1984. Counsel accepted that these averments would require to be the subject of evidence and adjudicated upon. However counsel submitted that no relevant or specific claim was made about the nature or quality of any access supposedly taken to the croft over the Bachuil lands outwith these periods. Accordingly he submitted that certain of the respondents' other averments were either lacking in specification or irrelevant to the proper issue in the case. I will also return to these submission in more detail later.

The Second Respondent

[10] The petition for interdict was served by the petitioner on the first respondent only. On the petitioner's behalf it was submitted that the dispute in the case was whether there existed a real right of servitude over the Bachuil Lands for the benefit of the heritable proprietor of Croft Ballimackillichan. That question was one which concerned only the heritable proprietors of those properties and as a consequence the second respondent had no title to defend the petition. Counsel relied on what was said in Servitudes and Rights of Way, by Cuisine & Paisley at paragraphs 1.50 and 1.51, The Law of Property in Scotland, by Reid at paragraph 481 and Rankine on the Law of Leases, at pages 709-711. In the present action it was not claimed that Croft Ballimackillichan was let to the second respondent with a right of servitude over the Bachuil Lands such as would create a real right thereto in the tenant. In these circumstances counsel submitted that the cases relied upon by the second respondent were all distinguishable from the circumstances of the present action. In particular they offered no support for a general contention that any party with a mere interest in the outcome of any action for interdict would be entitled to defend the proceedings.

The Respondents' Submissions

Res Judicata

[11] Counsel for the respondents contended that since the decision of the sheriff in the 1899 case established that there then existed a right of way over the Bachuil Lands which right of way provided access to Croft Ballimackillichan, rights of access to the croft would not be lost even if the route ceased to be a right of way. On this basis he submitted that the dispute between the parties was res judicata, or a form of it. In support of this argument counsel referred to McRobert v Reid 1914 SC 633 & Lord Burton v Mckay 1995 SLT 507. More generally counsel submitted that the courts were slow to permit multiple actions concerning the same interest and that what had been said in cases such as Greig v Magistrates of Kirkaldy (1851) 13D 975 and Primary Healthcare Centres (Broadford) Ltd v Ravangave 2009 SLT 673 was applicable to the circumstances of the present case and supported his contention that the issue between the parties had been judicially determined and could not be re-opened.

Personal Bar

[12] Counsel for the respondents submitted that the test for personal bar could be found in the speech of the Lord Chancellor in the case of Gatty v Maclaine 1921 SC (HL) 1 at page 7 where he said:

"Where A has by his words or conduct justified B in believing that a certain state of facts exists, and B has acted upon such belief to his prejudice, A is not permitted to affirm against B that a different state of facts existed at the same time."

Counsel submitted that the averments made on the respondents behalf at pages 22 and 23 of the Record were sufficient to allow him to prove that a conversation took place in which the present petitioner's mother did most of the talking and stated that the croft enjoyed a valid prescriptive right of access which did not require to be formalised. Counsel submitted that the respondents' averments to the effect that:

             i.     the petitioner's frail father did not dissent from what his wife had said;

           ii.     that he told her to hear out what the respondents were saying in regard to seeking a formalisation of the existing right of access, and

         iii.     that he ended the conversation by saying that he would look at any proposals put forward by the respondents to formalise the access;

met the test in Gatty and were sufficient to constitute a valid claim of personal bar against the petitioner as his father's successor.

General Pleading Points

[13] In response the more general criticisms of aspects of the case pled, it was submitted that the respondents' pleadings had in the first place to be viewed in the context of what was pled against them. The respondents sought to underpin their claim by averring occupation of the croft and the means of access thereto all the way back to the 1899 action. They were entitled to lead what evidence was available of access taken throughout that period. A proper consideration of the nature of any use of the route under discussion, such as might be necessary to consider whether use had been as of right, would require a consideration of "all of the circumstances" which pertained to or cast light on the use of the route concerned. Given such a test he submitted that it would be relevant to take account of "tradition" in the sense of what had been understood to be the case by others. For these reasons counsel submitted that, with a few minor exceptions, his averments ought to be admitted to proof. In developing these submissions counsel referred to Aberdeen City Council v Wanchoo 2008 SC 278, McInroy v Duke of Atholl (1891) 18R (HL) 46, Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1992 SC 357 and at 1993 SC (HL) 44. Neumann v Hutchison an unreported decision of the Sheriff Principal of Tayside Central and Fife dated 1 May 2008 and Scotland v Wallace 1964 SLT (Sh.Ct.) 9. I allowed the pleadings to be amended in terms of a short Minute of Amendment for the respondents which introduced some minor amendments to the averments in Answers 4, 5 and 6 and which introduced the 10^th plea in law previously omitted in error.

Title to Defend

[14] Counsel for the respondents submitted that the second respondent had, as a tenant, the right to protect her tenancy and rights accruing to it in respect of access. He referred to what was said in Cusine and Paisley at paragraph 1.51 to the effect that tenants are entitled to enforce certain rights and to the passages in Rankine at pages 709 to 711, where the author deals with same subject matter. Counsel relied upon what was said in the cases of Fleming and others v Gemmill 1908 SC 340 at page 348, The Gas Power and Bi-Products Co Ltd v William Beardmore & Co Ltd 1911 SC 27, and Glasgow Ship Owners Association v Clyde Navigation Trustees (1885) 12R 695. Counsel submitted that the case of Gemmill provided clear authority for the proposition that a tenant was entitled to protect his or her interests and that the other cases cited supported the general proposition that a person who might be adversely affected by the grant of an interdict has the right to be heard.

Discussion

Res Judicata

[15] The case brought before the sheriff at Oban in 1899 resulted in a judicial finding that a public right of way existed across the Bachuil Lands and on to Portnamorloch. The respondents do not assert that this right of way remains alive and do not challenge the petitioner's averments to the effect that Portnamorloch is no longer a place to which the public have resort for any purpose. The implication arising from the averments at page 37 and the terms of their fifth and sixth pleas-in- law is that the respondents accept this. The respondents do not contend that they are entitled to take access along what is a public right of way. They contend nevertheless that some form of private right remains in place in their favour which flows from the findings made in 1899 with the result that the plea of res judicata, or a form of it, applies.

[16] The sheriff's decision was that a public right of way had been established by use as such over the prescriptive period. In this manner, a right in favour of the public at large had been created. It followed that, as members of the public, the then tenant of Croft Ballimackillichan and his son had the right to access the croft by using a portion of that right of way, regardless of whether they personally ever went any further along the route. Such a right was recognised in the case of McRobert v Reid. However, as is clear from was said by the Lord President at page 638, the benefit which is obtained by the proprietor of land adjoining a public right of way is a right of access possessed as a member of the public, rather than as the beneficiary of a praedial servitude. What is claimed in the present case is a private right rather than a public right. No private right was conferred on anyone in the 1899 action. The sheriff's note records that two separate claims were made. The first was that the access route claimed was part of a right of way used by the public from time immemorial. The second was that the part of the route leading from the croft to the highway at Bachuil was a servitude road giving access to the croft. The sheriff declined to make any determination on the second claim, stating that to do so was unnecessary given the public character of the route as he found it to be.

[17] Nor do I consider that the decision in the case of Lord Burton v Mackay has the effect contended for by counsel for the respondents. The evidence in that case enabled the finding to be made that there had been sufficient usage, even after the route had ceased to be a public one, for more than the prescriptive period, to establish the private right claimed. That was the basis upon which the Court held that the defenders were entitled to continue to use the route in dispute to access their property. Whilst not part of the reasoning of his decision, Lord Coulsfield also considered the question of whether established rights of use along a public right of way would be lost if that right of way ceased to exist. In doing so he contemplated the possibility of some residual public right remaining in place and also took account of the possible acquisition by intermediate proprietors of a private right in the manner discussed by Lord Johnston in McRobert v Reid.

[18] It is of importance though to note that his Lordship was considering established rights of use. It has never been held that the proprietor of Croft Ballimackillichan had acquired a private servitude right of access in the manner contemplated by Lord Johnston in McRobert v Reid. In his opinion, at pages 641 and 642, he made it clear that he saw the establishment of a public right of way and the establishment of a private servitude right by the defender in that action as being two quite distinct considerations. Whilst he acknowledged that a private right of servitude might be established along part of a route contemporaneously with the establishment of a public right of way along its entirety, he stressed that the two were based on different rights and claims. The heritable proprietor of Croft Ballimackillichan was not a party to the 1899 action. The two defenders were the tenant and his son, who it was recognised were entitled to use any part of the public right of way but to do so in their capacity as members of the public. In my view nothing further was established in the 1899 case and the sheriff's decision does not operate to found a private right of servitude in favour of the now owner of the croft more than one hundred years later.

[19] It was also contended that the parties to the present action were the successors in title to those in the 1899 case and that both cases concerned access to the croft over the petitioner's land. Whilst the owner of the croft was not a party to the original action, stress was laid on the fact that the then tenant was a party, as the now tenant is. On this basis it was also said that the plea of res judicata applied. In my opinion the second respondent cannot be described as anything more than the tenant for the time being of Croft Ballimackillichan. There is no sense in which she is the legal successor to the tenant in 1899 such as would communicate any rights or obligations from one to the other. The parties to the present case are not the successors of the parties to the 1899 case. The 1899 case did not concern the same subject matter as the present case and the media concludendi are not the same between the two actions. For all of these reasons I am satisfied that counsel for the petitioner was correct in submitting that the case as pled on res judicata is irrelevant.

Personal Bar

[20] The respondents' claim of personal bar is dependant upon the averments made in Answer 5 at pages 22 to 23 of the Record and in Answer 6 at pages 32 to 33. It is more straightforward to deal with the later averments first. To found a claim of personal bar anything said by the present petitioner's mother would have to have been said in her capacity as an executor of her husband's estate, which she was from a point in March 2008. A further requirement would be that the first respondent acted, to his prejudice, on the basis of an assertion as to a particular state of facts made by the petitioner's mother - Gatty v Maclaine. It is not plain from the averments at page 33 when any such comments as the first respondent wishes to found upon were made. The suggestion appears to be that the relevant comments were made whilst he was undertaking work at Bachuil House. However it is averred that he did such work in 2007 and in 2008. The first respondent does not aver in Answer 6 that he entered into an agreement to purchase Croft Ballimackillichan on the basis of any statement as to fact made by the petitioner's mother, in either 2007 or in 2008. In this regard it is of relevance to note, as counsel for the petitioner pointed out, that the first respondent does not at any stage in the pleadings aver when he agreed to, or did in fact, purchase the croft from its previous owners. However he does aver at page 23 that he proceeded to purchase Croft Ballimackillichan on the basis of assurances given in the course of a conversation in December 2006. In these circumstances it seems clear that the averments at pages 32 to 33 cannot lay a relevant basis for any claim of personal bar and I will uphold the petitioner's plea to the relevancy of these averments and refuse to allow them to proceed to proof.

[21] The passages founded upon in Answer 5 are a little less straightforward to adjudicate upon. At pages 22 and 23 of the Record there are averments concerning a conversation in around December 2006 when it is said that assurances were given by Mr and Mrs Livingstone (the petitioner's parents) which were acted upon by the first respondent and caused him to proceed with the purchase of Croft Ballimackillichan. It was accepted in argument that Mr Livingstone was at the time the sole proprietor of the Bachuil Lands and that accordingly it was only his words or conduct which could found a plea of personal bar. The averments in the main relate to comments said to have been made by Mrs Livingstone. In particular it is averred that it was she who stated that the croft enjoyed a valid prescriptive right of access. It is averred that Mr Livingstone:

"did not dissent from what was said by his wife" - page 22B

and that:

"The upshot of the conversation, which it was clear Alistair Livingstone accepted, was that the prescriptive access at Appin had worked perfectly well and therefore the prescriptive access to the Croft should be adequate for the Respondents' requirements." - page 23 A.

[22] No averments are included as to how Alistair Livingstone made his position clear and I accept counsel for the petitioner's general contention that in law silence should not constitute assent. However it is also averred that Alistair Livingstone:

"at one stage told his wife to hear out what the Respondents were saying in regard to seeking a formalisation of the existing right of access" - page 22B

and that:

"Alistair Livingstone ended the conversation by saying that he would look at any proposals put forward by the Respondents to formalise the access" - page 23 C.

[23] Accordingly it can be seen that the averments under challenge refer to more than just failure to dissent and do include comments which a judge hearing the evidence might choose to construe as representations as to a state of facts concerning access to the croft. Furthermore, whether failure to dissent has no value, or ought to be given some weight in combination with things said by Alistair Livingstone himself, might well depend on the nature and detail of the conversation and the circumstances in which it took place. In these circumstances I have come to be persuaded that it would be wrong of me to deny the first respondent the opportunity to lead evidence on these matters and I will permit a proof before answer on this aspect of the case on personal bar.

Pleading Points

[24] Counsel for the petitioner criticised certain of the averments made by the respondents in relation to the assertion that a prescriptive right of servitude had been acquired for the benefit of the owner of Croft Ballimackillichan over the Bachuil Lands.

[25] Putting aside the claim that the respondents are entitled to exercise a right of access connected to the 1899 case, the first respondent, as the now proprietor of the heritable property which constitutes Croft Ballimackillichan, claims that a positive servitude right of access has been acquired by him such as would be recognised in terms of section 3(2) of the Prescription and Limitation (Scotland) Act 1973. The averments made at pages 19, 20 and 34B of the Record reflect that claim, as does the seventh plea in law.

[26] In order for a positive servitude right to be acquired by prescription there requires to have been possession (or use) for a continuous period of at least twenty years, which use must have been open, peaceable and without judicial interruption. Furthermore, such use must have been exercised "as of right" rather than by tolerance or licence. The use or possession must have been with the intention of establishing an adverse right rather than exercising a right with the agreement of the servient tenement. In this context the onus is on the person seeking to establish a servitude to prove that there has been possession (or use) "as of right" - Cuisine & Paisley paragraph 10.19.

[27] In the present case it is averred that the buildings on Croft Ballimackillichan are in ruins and it is admitted that no one has resided at the croft for many years. The petitioner acknowledges that the previous owner of the croft was permitted to use a shortcut across the Bachuil Lands by quad bike or tractor from the time of his purchase in around 1985 but only for the purpose of tending stock kept by him on the croft land. It is averred that this use was by way of tolerance. The court will require to decide whether, on the evidence led, there has been sufficient use to constitute the servitude right claimed and whether this use has been made as of right. These questions will require to be decided by inference from the actual use made with the onus resting upon the first respondent to prove that the use which he relies upon has been use as of right. No doubt this will involve considerations including the nature, quality and frequency of the use. However, in these circumstances counsel for the petitioner was, it seems to me, correct in submitting that only averments which are relevant to instructing a decision on these matters can be permitted to proceed to probation. Whilst counsel for the respondents sought to argue that he was entitled to rely on what he called "all the circumstances of the case", any such circumstances require to be capable of informing the decision to be arrived at on the issues mentioned above. This assessment appears to me to be consistent with what was said in both McInroy v Dule of Atholl and in Aberdeen City Council v Wanchoo. Nor do I consider that there was anything concerning principle said in the case of Scotland v Wallace which would support counsel for the respondent's submissions concerning the admissibility of what he called evidence of "tradition".

[28] In advancing this part of his attack on the relevancy of the respondents' pleadings counsel for the petitioner also drew attention to certain averments which appeared to constitute the pleading of evidence, or to assert negative propositions. Whilst these criticisms were included under the umbrella of his general attack on the pleadings concerning the acquisition of a servitude right, he submitted that they were equally susceptible to criticism on the basis that an assertion of what was not done was of no value in advancing the evidence as to what was done and that facts as opposed to a summary of anticipated evidence require to be pled. In my view the criticisms identified by counsel for the pursuer were well merited and ought to be sustained.

[29] For the reasons given in paragraphs [26] to [28] I have decided that certain of the averments made on behalf of the respondents are irrelevant or insufficiently specific and ought not to proceed to probation. They appear in the Record as follows:

1. On pages 11 and 12 the whole passage beginning at letter B, "The traditional access to the croft...", all the way to and including the passage at page 12 letter C ending, "Access to the croft was taken through the lands of Bachuil".

2. On page 12 at letter E the sentence, "The traditional access to the croft has been shown on Ordnance Survey Maps going back to when the croft house was built probably in the late 19^th Century."

3. On page 14 at letters A to B the whole passage beginning, "The said Ordnance Survey map...", to and including the sentence ending, "but it was not the main access to the croft."

4. On page 20 the sentence at letter B, "During the second world war, army vehicles would also use the route regularly."

5. On page 20 at letter E in the second last line the words, "traditional and".

6. On page 32 at letter A the passage, "Explained that no living Lismore islander has any memory of any route other than that through the Bachuil lands being used as access from the public road to the croft. There has been no other useable route."

The averment at page 21 letter B, "it presumably having been recognised that access was clearly by the traditional route as shown on Ordnance Survey Maps", was also challenged but was deleted by the respondents Minute of Amendment.

[30] As a consequence of the decision which I have arrived at in relation to the respondents' claim of res judicata the averments in relation to this aspect ought not to proceed to probation. Counsel for the petitioner submitted that the entire reference to the 1899 case from page 34 letter C to page 37 letter D ought to deleted. However counsel for the respondents also sought to rely on aspects of the evidence led in that case in support of his effort to establish the prescriptive acquisition of a servitude right. The respondents seek to link their claim back through the use made by the previous owners and tenants of Croft Ballimackillichan. Their averments on these matters appear at page 19 letter B through to page 20 letter E and at page 37 letter C to D. A servitude right could be established for the benefit of the dominant proprietor by founding on use made by his tenant - Gordon on Scottish Land Law paragraph 24-48. I cannot assert at this stage that the evidence given in the 1899 case concerning the access taken over the Bachuil Lands by the defenders to that action will be of no relevance to the claim made concerning the prescriptive acquisition of a servitude right in the present case. Accordingly I cannot give full effect to the submission by counsel for the respondent. The passage which falls to be deleted will be the passage commencing at page 35 letter B with the words "The defenders pled" and ending at page 37 letter C with the words "stock, carts and vehicles."

[31] I have been satisfied by the submissions of counsel for the respondents that the remaining passages criticised do pertain sufficiently to the issues raised and contain sufficient specification to entitle them to remain in the pleadings. These passages appear in the Record as follows:

1. On page 20 the averments concerning the Ramsay family.

2. On page 31 the averments concerning Sarah Livingstone's uncle.

Title To Defend

[32] In my opinion the submissions presented by counsel for the petitioner on this aspect of the case were correct. The question in the present case concerns the existence or otherwise of a servitude right of access. That is a claim between the heritable proprietors of the land concerned. The passages cited by counsel for the petitioner in both Cusine & Paisley and Reid support the contention that a tenant has no right to enforce a servitude unless he has been granted a real right sufficient in its terms to entitle him to do so. Whilst Rankine mentions a tenant's entitlement to vindicate his right to exercise servitudes let to him along with the corporeal subjects in his lease so far as thus acquired by him and no further, this does not assist the second respondent as she does not claim to hold a lease granting a servitude right of access over the petitioner's lands. The case of Gemmill does not in my view assist the second respondent's claim. It simply concerned the tenant's right to protect the subjects expressly let to and occupied by him, the enjoyment of which was adversely affected by pollution at the hands of his neighbours. In that case there was no question of the tenant seeking to assert rights over neighbouring corporeal subjects by dint of a claim of servitude whose very existence was in dispute between the relevant heritable proprietors. Nor do I consider that the remaining cases relied upon by the second respondent support the contention that she has any form of right entitling her to defend the present proceedings.

[33] Having decided upon the competing submissions in the ways described I will sustain the petitioner's first plea-in-law to the extent of refusing to admit to probation the averments indentified in paragraphs [20], [29] and [30] above. I will sustain the petitioner's second plea-in-law and repel the answers insofar as stated at the instance of Sarah Campbell. I will make an award of expenses in favour of the petitioner against her as an assisted person. I will repel the fifth and sixth pleas-in-law for the respondents along with the first part of their seventh plea-in-law. Quoad ultra I will allow a proof before answer. I will reserve the question of expenses as between the petitioner and the first respondent until parties have had an opportunity to consider matters and to decide upon any submissions they may wish to make.