Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 54
	OPINION OF LORD BRACADALE in the cause COMPUGRAPHICS INTERNATIONAL LIMITED Pursuers; against COLIN NIKOLIC Defender: ­­­­­­­­­­­­­­­­­________________

Pursuers: Sandison, Advocate; HBJ Gateley Wareing (Scotland) LLP

Defender: Ms Wolffe, Q.C.; Drummond Miller, WS

8 April 2009

Introduction

[1] In this action the pursuers seek declarator that they are the heritable proprietors of pipes, ductwork and associated support structures ("the ductwork") situated on and over the path and verge lying to the south of the south wall of Unit F, Newark Road North, Eastfield Industrial Estate, Glenrothes, and that they have a heritable and irredeemable right to retain the ductwork resting on and situated above the solum of the path and verge free from interference from the heritable proprietor of the solum. Alternatively, they seek declarator that as the heritable proprietors of the subjects forming Unit F they have heritable and irredeemable servitude rights to retain the ductwork. They seek interdict against the defender or anyone authorised and instructed on his behalf from removing, altering, damaging or interfering with the ductwork. Interim interdict was granted at an earlier stage in the proceedings.

[2] The case came before me for a discussion on the procedure roll. Ms Wolffe, Q.C., for the defender, moved me to dismiss the action in terms of the defender's first plea-in-law. Mr Sandison, who appeared on behalf of the pursuers, moved me to repel the defender's pleas-in-law and grant decree de plano on one or other of the alternative bases.

The pleadings

[3] The pursuers aver that Unit F was built before 17 May 1971. They leased the building from the Glenrothes Development Corporation ("GDC") from 17 May 1971 and purchased the property on or about 15 May 1983. They have remained in continuous occupation of the premises since 17 May 1971. There is a Feu Disposition by GDC in their favour recorded in the General Register of Sasines on 14 December 1983. The pursuers aver that to the south of the path and verge is ground pertaining to Units H and J. These were previously owned by Galgon Industries Limited ("Galgon"). The pursuers aver that in Unit F they operated a factory for the manufacture of photo-masks which are used in the manufacture of semiconductor devices. They aver that the product is manufactured in "clean rooms" which require a supply of clean conditioned air at a constant temperature and humidity. They aver that in order to ensure such an air supply throughout their occupation of the unit, they have had an air conditioning system installed. The system passes air through a number of ducts and pipes which pass outside the building along part of its south wall and comprise the ductwork. There is a path and verge which runs immediately outside the south wall of Unit F which is used as a fire escape route. The ducts for the air conditioning system run immediately above the path and verge and are supported on metal posts which are secured to the ground. The pursuers aver that Galgon erected a fence some 1.5 metres or thereby from the south wall of the building and lying immediately to the south of the supporting metal posts of the ductwork.

[4] The property which belonged to Galgon was recently purchased by the defender. The defender avers that the ductwork protrudes over, and the supports encroach upon, his land. The supports are concreted into the defender's land. The defender avers that the 1983 Disposition did not convey to the pursuers any land beyond and to the south of the outer edge of the building comprising Unit F. In particular the Disposition did not convey the strip of land lying between and immediately to the south of the outer edge of the wall of Unit F and the fence. In response to that averment the pursuers aver that it is believed to be true that the defender is the owner of the path and verge above which the pursuers' ductwork runs and upon which the supports of the ductwork rest. The discussion before me proceeded on the basis that that was the case.

[5] Relying on the terms of the 1983 disposition, in Article 4 of Condescendence the pursuers aver that as at the respective dates of delivery to the pursuers and recording of the 1983 Disposition, the factory premises included (as they had at all times since at least May 1971) the ductwork. The pursuers go on to aver that in these circumstances they acquired by dint of the recording of the 1983 Disposition the dominium utile in and to the ductwork and a heritable and irredeemable right to retain it situated above and resting on the solum of the path, free of interference of the heritable proprietor of the solum.

[6] In response to these averments the defender avers that he is and remains the owner of the solum on which the ductwork encroaches. His title has been recorded in the Land Register and no steps have been taken by the pursuers to rectify the 1983 Disposition or to rectify or reduce the defender's title which includes the land immediately adjacent to and to the south of the outer southern wall of the building comprising Unit F. The defender avers that the 1983 Disposition does not support a contention that the ductwork was divided into separate heritable tenements from the path and verge below.

[7] In Article 5 of Condescendence the pursuers state an esto case that they have acquired positive servitude rights (a) of the nature of jus projiciendi and (b) oneris ferendi. They aver that they acquired these servitude rights as a result of having possessed them by way of installation and retention in situ of the ductwork for a continuous period in excess of 20 years from 17 May 1971 openly, peaceably and without judicial interruption. It is averred that these rights are exempt from challenge in terms of section 3(2) of the Prescription and Limitation (Scotland) Act 1973 as amended. Accordingly, they are entitled to continue to retain the ductwork free of interference from the heritable proprietor of the solum.

[8] In Answer 5 the defender avers that insofar as disclosed on the Land Certificate relative to Unit F, the pursuers acquired their title to the subjects only in about late 1996 by virtue of Feu Disposition in their favour granted by the previous infeft proprietors, Cinio Estates Limited. Accordingly there has not been the requisite possession on the part of the pursuers sufficient to establish a servitude by positive prescription.

[9] The pursuers aver in Article 3 of Condescendence that on or about 12 June 2007 their Managing Director was contacted by the defender. In the course of conversation the defender demanded that the pursuers remove the ductwork from the area over the path and verge. He went on to indicate that if they were not removed by Friday 15 June 2007 he would instruct contractors to remove them on Monday 18 June 2007. It was in response to this indication that the pursuers obtained interim interdict from the sheriff.

The pursuers' case on ownership

[10] The pursuers' primary contention is that the ductwork was conveyed as parts and pertinents. The words "parts and pertinents" are implied in a modern conveyance (Stair Memorial Encyclopaedia para. 199). Parts and pertinents are defined in Bell, Principles of the Law of Scotland, at s. 739 as being:

"Such accessory parts, and fixtures, and appendages to land, or houses, or such separate possessions, or privileges, as accompany the occupation and the use of the land, or have for 40 years been so enjoyed along with it. They are, if consistent with the title, carried without being named or described in the Charter. Even tenements lying separate and discontiguous from the main subject, 'or expressly included in the titles of another', may be thus carried, unless excluded by a bounding Charter which does not specify them. Possession for the prescriptive period is the proper mode of explaining what are the parts and pertinents of lands.....The possession must be as part and pertinent in virtue of the titles. Every proprietor is entitled to claim such accessories and incidents as are necessary to the reasonable enjoyment of his property, e.g. necessary ways and passages".

At s. 746 it is pointed out that separate tenements and patches of land, houses etc. may become pertinents of an estate in land by possession as such during the term ofprescription. In the Stair Memorial Encyclopaedia (para. 205) it is stated that a landowner may acquire land beyond his existing boundaries by positive prescription.

[11] Ms Wolffe submitted that the conveyance in favour of the pursuers was a bounding title which had the consequence that it was not possible to acquire rights of ownership of anything beyond the boundary description. The words of the disposition and reference to a plan created a bounding description from which it was clear that the southern boundary of what was disponed was the south wall of the building. Ms Wolffe advanced a further argument to the effect that Scots law did not recognise a separate tenement of pipes, separate from and apart from the solum on which they stood. The general principle was that the owner of the solum of land owns a coelo usque ad centrum: all the heritable property from the heavens to the centre of the earth belongs to the owner of the solum. Separate tenements were recognised only sparingly in Scots law. Ms Wolffe referred to the Stair Memorial Encyclopaedia, para 207 where a separate tenement was defined as any heritable property which is owned separately from the solum of the ground. The examples of separate ownership of minerals in the ground and individual flats in a block of flats are cited. Under reference to Crichton v Turnbull 1946 S.C.52 M/s Wolffe submitted that pipework could not competently be separated from the land to which it has acceded.

[12] The first question to be addressed therefore, is whether the title is a bounding title such as to exclude any tenement lying beyond the boundary identified in the disponing deed. In Royal & Sun Alliance v Wyman-Gordon 2002 S.L.T.1305 Lord Eassie reviewed the authorities in relation to the nature and effect of a bounding charter. At paragraph 18 Lord Eassie noted the distinction between a conveyance by general description and a bounding title.

"By contrast to conveyance by general description, the 'bounding charter' endeavoured to set the limits of the subjects by describing those limits and a consequence of the setting of the boundary was that the conveyance would not be habile to permit prescriptive possession and acquisition of land outwith its defined bounds."

[13] In North British Railway Co v William Moon's Trustees (1879) 6 R 640 there was a dispute as to whether a piece of ground which was occupied by a purchaser of a larger piece of ground adjoining it had been included in the Disposition of the larger piece of ground. The Court held that the piece of land in question had not vested in the proprietor. The Disposition was a bounding title which contained measurements and reference to an attached plan. At page 657 the Lord Justice Clerk said:

"I am of opinion, in the first place, that Moon's title is a bounding title. The plan shows quite plainly what it was he got and what it was he did not get and it shows clearly enough that he did not get the small plot at the side of the bit of ground which he got".

[14] The subjects disponed to the pursuers by GDC in the 1983 Disposition are described in the following terms:

"ALL and WHOLE that area of ground extending to 313 decimal or one-thousandth parts of a hectare or thereby lying to the south of Newark Road North forming part of the Eastfield Industrial Estate situated in the designated area of the new town of Glenrothes ....all as the said area of ground is delineated and shown coloured pink on the plan annexed and signed as relative hereto which subjects hereby disponed are hereineafter referred to as 'the Feu'...Together with the factory premises and all others erected on the feu".

Later in the Disposition there is the following reservation of a right of access for a fire escape:

"There shall be reserved to the superiors and the proprietors or tenants of Factory Units G, H, J and K and others at Eastfield Industrial Estate aforesaid rights of access over the fire escape route coloured yellow on the said plan as an emergency escape route only, declaring that the Feuar shall be bound to keep the fire escape route free of any obstacle or hindrance of any kind the existing metal supports of the air conditioning system being excepted".

In the plan attached to the 1983 Disposition the southern boundary of the area shaded in pink appears to be the southern wall of the factory Unit F. A strip of ground 1.83 metres in width running along to the south of the southern wall of the factory is coloured yellow and represents the fire escape route.

[15] The terms of the 1983 disposition and the reference to the plan would seem to suggest that the southern boundary of the premises being disponed was identified in such a way as to constitute a bounding title. However, a question arises as to whether the 1983 Disposition is capable of being construed as disponing anything beyond that boundary. The disposition includes not only the area of ground but also the factory premises and "all others erected on the Feu". The air conditioning system, including the ductwork, was in existence at the time of the grant of the Disposition; and there is reference to the air conditioning system in the deed itself. Mr Sandison argued that the reference to the supports in the context of the fire escape route supported the proposition that the ductwork was regarded by the granters of the Disposition as being disponed to the the pursuers. It is, I think, necessary to have regard to the nature and purpose of the ductwork. It was, at the time of the 1983 conveyance, and continues to be, attached to the outside of the south wall of the pursuers' factory. It provides a function essential to the operation of the factory. It overhangs a strip of land which has the character of a path, which in terms of the 1983 disposition has been reserved to the superiors and the proprietors of Units G, H, J and K as a fire escape route. From the duty placed on the pursuers to keep the fire escape route free from obstruction the supports of the ductwork are specifically excepted. I agree with the submission of Mr Sandison that it would be difficult to see why there was a need to exempt the supports from the duty to keep the fire escape clear if the ducts and supports were not regarded as being in the possession of the pursuers. There seems to me to be a degree of tension between the apparently bounding nature of the title on the one hand and the references to the ductwork on the other. If there is an ambiguity in the 1983 disposition then it may be that possession for the prescriptive period may explain the title.

[16] I turn now to consider the cases which might support such an approach. In Cooper's Trustees v Stark's Trustees (1898) 25R 1165 the proprietor of a house consisting of three storeys with cellars below, possessed along with it for the prescriptive period a saloon built on ground behind the house. On his right to that ground being challenged he founded on his prescriptive possession of the subjects on a title which contained the description "all and whole that lodging, being the eastmost of the middle flat of that stone tenement of land covered with slate in Brownfield....consisting the said tenement of cellars in the sunk storey and three square storeys, which lodging consists of a kitchen and three rooms together with two cellars in the sunk storey, which cellars are situated on the south east corner of that storey, and which cellars are of the following dimensions - namely... with free ish and entry to the said lodging and pertinents by....together with the whole parts, pertinents and privileges of the said lodging". The Lord Justice Clerk, Lord M'Laren and Lord Moncreiff expressed the view that the title did not amount to a bounding title. The Lord Justice Clerk, quoting Erskine, pointed out that a description such as to exclude extension beyond the subjects would require to be "obviously and indubitably exclusive". The defenders founded on the clause "together with the whole parts, pertinents and privileges thereto belonging" and maintained that by themselves and their authors they had possessed the disputed part of the area for the prescriptive period under the clause of parts and pertinents. With respect to the argument that the title was a bounding title and that the description of the subjects was as definite a description of the subjects as if they had been described as bounded by the four external walls of that tenement and that therefore the defenders could not prescribe anything beyond that area or these limits, at p. 1166 Lord Adams said:

"I do not think it is necessary to inquire how that would have been if the grant had been limited to these subjects as they are described, but the subjects are conveyed, 'together with the whole parts, pendicles, privileges and pertinents of the said several subjects'. These words are not to be ignored and the question is what was intended to be conveyed by the words 'parts, pendicles and pertinents'. That is a question of fact, and if the question had arisen within the years of prescription, possession, prior titles or other evidence, might competently have been appealed to determine it. But if the question arises, as in this case, after the period of prescription has run, it is clear from the case of Auld v Hay, that the possession which has followed upon such a title excludes all other inquiry, and at once explain the grant, and constitutes a prescriptive title".

Lord McLaren went further and at p. 1168, expressed the view:

"With respect to the argument founded on the rule as to bounding descriptions (and this, I think, is the pursuer's whole case) I think the answer that the conveyance of pertinents is not confined to pertinents lying within the supposed boundaries".

Later, at p. 1169 he went on to say:

"But supposing that we are ...to treat this as a bounding description, that description is one thing; the subsequent conveyance of parts and pertinents is another...A pertinent is only defined as having relation to the principal subject, and its extent is determined by proof of possession."

[17] In Auld v Hay (1880) 7R 663 it was held that uninterrupted and exclusive possession of lands for 40 years under a charter and sasine containing a description which can be so construed as to embrace the whole lands, though it may also be so construed as to embrace part of them only, is sufficient to exclude all inquiry, and to protect the person in possession against anyone holding even an express title, prior in date, to the whole or any part of the lands.

[18] In Nisbet v Hogg 1950 S.L.T.289 by disposition dated and recorded in 1929 a purchaser purported to acquire certain heritable property from trustees. After describing the subjects conveyed the disposition narrated:

"Together with the whole rights and pertinents thereof, including all rights in any way competent to us as trustees foresaid in and to the triangular area of ground on the southside of the road or path in front of said houses, and lying between the said road or path and the garage property and in and to the washing-house erected thereon".

It was held, Lord Carmont dissenting, that the pursuer's title was not bounding quoad the piece of ground in dispute and, being followed by the appropriate possession for the prescriptive period, was habile to confer upon the pursuer a good title to that piece of ground. At page 294, Lord Russell said:

"It appears to me that the clause of parts and pertinents is susceptible of a meaning which is inconsistent with the description of the principal subjects being interpreted as confined within inflexible boundaries; and it is also susceptible of the meaning which is consistent with the actual exclusive possession of the pursuer and his authors. I consider that prescription has the effect of construing the title upon which possession has followed, and of removing any ambiguties which may have attached to the description of the property in that title".

Lord Russell referred to Cooper's Trustees v Stark's Trustees and in particular the opinion of Lord M'Laren.

[19] An analysis of these cases suggests that where there is ambiguity in the deeds possession for the prescriptive period may explain the title. It seems to me that the 1983 disposition is capable of being construed as a bounding title but it is also capable of other interpretation. The pre-existence of the ductwork and the references to it in the disposition do in my view raise an ambiguity. There is an implied conveyance of parts and pertinents. In my opinion the deed is capable of being construed as including the ductwork as parts and pertinents. Accordingly, particularly in the light of the opinion of Lord M'Laren in Cooper's Trustees and the approach of the majority in Nisbet, I am of the opinion that the title would be capable of being explained by possession by the pursuers of the ductwork for the prescriptive period.

[20] That leads to a consideration of the second argument advanced by Ms Wolffe, namely, that under the law of Scotland the ductwork could not form a separate tenement. In Crichton (supra) part of a farm was acquired under a disposition which conveyed it to the purchaser together with the farmhouse and other buildings and erections and "together also with the windmill, pump, well and water supply and piping" in a field retained by the seller. It was held, Lord Carmont dissenting, that it was not legally possible to convey rights over piping in the ground to a party other than the proprietor of the ground because such pipes and channels must form part of the soil. At page 64 Lord Moncrieff said:

"Such pipes necessarily fall under the maxim inaedificatum solo solo cedit and the conception of a heritable right in such structures or strata is one which I find to be quite without support either in principle or in authority".

The piping in the ground was indivisible from the ground itself.

[21] The decision in Crichton was followed by Lord Macfadyen in Property Selection & Investment v United Friendly Insurance plc 1999 S.L.T.975. In that case it was held that there was no foundation in principle or authority for finding that a discrete item protruding through one property into the solum of the adjacent property could be regarded as forming part of the property from which it protruded and rock anchors insofar as lying within the solum of the pursuers' property could not be regarded as other than part of that property. Lord Macfadyen was unable to find any difference between the rock anchors in the case which he was considering and the piping and drains in Crichton v Turnbull.

[22] The ductwork attached to the pursuers' factory seems to me to represent an entirely different entity from the pipework and channels which were the subject of dispute in Crichton. There the issue related to the impossibility of separating from the property in land the property in pipes, conduits and drain channels which traversed the land. In Crichton Lord President Normand cited as an example of the danger of separating the pipes and channels from the land in which they ran the possibility that it might suit the owner of the pipework and channels to allow the rubble drains to become partially choked, leading to the field under which they ran becoming waterlogged, rendering it unsuitable for cultivation. That example reinforces my view that the structure of the ductwork in this case is of a completely different nature to the pipes and channels under consideration in Crichton. Similar considerations apply to the rock anchors which presented the problem in Property Selection & Investment v United Friendly Insurance plc.

[23] In these circumstances I conclude that, if the pursuers can demonstrate possession of the ductwork for the prescriptive period, they would succeed in their primary case.

Pursuers' alternative case: servitude rights

[24] Lest I be wrong in my decision on the pursuers' primary case based on ownership, I now consider the pursuers' alternative case which is that they had the benefit of servitude rights to maintain the ductwork in situ. The ductwork was overhanging and resting on the solum and had been for more than the prescriptive period of 20 years. The Prescription and Limitation (Scotland) Act 1973, Section 3(2) provides:

"If a positive servitude over land has been possessed for a continuous period of 20 years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge."

It is well recognised that for a servitude to be validly constituted by prescriptive possession it requires to be one of a type known to the law or at least similar in nature to a recognised servitude. A recent statement of this requirement and the justification for it is to be found in the opinion of Lord Carloway in Romano v Standard Commercial Property Securities Limited 2008 S.L.T.859 at para. [23]:

"The critical feature of servitude, as distinct from other real rights, within the feudal system of tenure, as existed at the time of the relevant conveyances and related deeds is that they could be constituted without being referred to in any writing ....they derive from the Roman law as interpreted by the Institutional Writers and applied over time by the courts. Because they do not necessarily appear in title deeds, a prudent principle developed whereby in order to be constituted, they had to be of a known type."

[25] The ductwork both overhangs and rests on the land which the defender avers belongs to him. In their alternative case the pursuers seek to overcome that difficulty by relying on the existence of two servitude rights which they have exercised together in the course of their possession for the prescriptive period. These are a servitude right of overhang and a servitude right of support.

[26] The first question that arises in relation to the pursuers' alternative case is whether there is known to the law of Scotland a servitude of overhang derived from the jus projiciendi of the Roman law. Roman law recognised a servitude right of occupying the space above the land of another by projections or overhanging items such as the eaves of houses, bow-windows, balconies or galleries (D. 8, 2, 17).

[27] Mr Sandison accepted that authority on this question was sparse, but submitted that there was no reason to suppose that the servitude of overhang did not exist in Scots law. The issue is mentioned in two twentieth century textbooks. T. A. Ross Servitudes in the Law of Scotland (1933) pp. 70 to 71 dealt with the servitude of evesdrip. The author referred to the Civil Law where there existed the servitudes of stillicide and fluminis, by which a proprietor was bound to receive on his property the rain drip or the rhone water from his neighbour's house, and noted that these servitudes had been accepted in the law of Scotland. In the last paragraph on page 72 the author states:

"Closely allied to evesdrip and involving by its nature that servitude as well, is the right of projecting a building or balcony over a neighbour's land. There are two servitudes relating to such projections recognised in the Civil Law. The jus projiciendi entitled a man to make such an addition to his building..."

Cusine and Paisley, Servitudes and Rights of Way (1998) express a modern view on the question of the jus projiciendi. At paragraph 3.22 the authors refer to the passage in T. A. Ross and, after analysing various possible ways in which the right of a proprietor to keep an encroachment in situ might be based, go on to say:

"The only other possibility is therefore a servitude - the jus projiciendi of the Civil Law. The right may therefore be constituted in any way by which other positive servitudes can, but it has to be accepted that in McArly v French's Trustees [(1883) 10R 574] where a sign board had been in place for over 40 years, Lord Young said that he was not basing his decision on prescription, and the defenders did not argue that there was a servitude. From a practical standpoint, Lord Young's decision was correct, but he stated that the sign had been possessed as a pertinent for a period of more than 40 years and that was evidence of an agreement at some point in the past. The Lord Justice Clerk (Moncrieff) saw no reason why prescription should not apply, and nor do we."

As Lord Carloway points out in Romano, despite Lord Young's statement that he was not basing his decision on prescription, the interlocutor of the court in McArly makes it clear that it did form the basis of the decision.

[28] Ms Wolffe submitted that the view expressed by Cusine and Paisley was couched in tentative terms and was not supported by authority. The treatment of the matter by T A Ross was limited and would be an insecure foundation for the existence of the servitude. In support of her contention that a servitude derived from the jus projiciendi was not recognised by the law of Scotland Ms Wolffe relied in particular on the decisions in Alexander v Butchart 1875 (3R) 156 and Romano (supra). However, both these cases were concerned with shop signs which encroached on neighbouring property. In Romano Lord Carloway expressed the following view at para. 25:

"There is no recognised servitude of signage (or shop front). This is no doubt because it is seldom, if ever, necessary to advertise a shop or restaurant upon another's property."

I am not persuaded that these cases found a broader conclusion that a servitude of overhang is not known to the law of Scotland. In Stair, Institutions of the Law of Scotland, 2.7.5 it is noted that:

"There may be as many (servitudes) as there are ways, whereby the liberty of a house or tenement may be restrained in favour of another tenement ..."

In Bell Principles, para 979:

"What shall be deemed a servitude of a regular and definite kind is a secondary question, as to which the only description which can be given generally seems to be, that it shall be such a use or restraint as by law or custom is known to be likely and incident to the property in question, and to which the attention of a prudent purchaser will, in the circumstances, naturally be called."

While it must be recognised that the matter has not previously been the subject of a decision by a Scottish court, I see no reason in principle why the law of Scotland cannot recognise a servitude of overhang. It seems to me that the ductwork is of a nature which would have met the requirements of the jus projiciendi. It adheres to the wall of the pursuers and overhangs the land of the defender. It is of the nature of a gallery which is designed to carry items which fulfil a function essential to the operation of the factory. I conclude, therefore, that a servitude of overhang derived from the jus projiciendi is recognised by the law of Scotland. It seems to me that the ductwork is of such a nature that, if the pursuers can prove that it has been in their possession for the prescriptive period, it would fall within the scope of the servitude.

[29] At para. 6 of the same chapter in Stair Instituions of the Law of Scotland the servitude of support is described as follows:

"The prime positive servitude of city tenements, is the servitude of support, whereby the servient tenement is liable to bear any burden for the use of the dominant; and that either by laying on the weight upon its walls, or other parts thereof..."

Ms Wolffe submitted that, while the servitude of support was recognised by the law of Scotland, it was restricted to the context of one building resting on another. Mr Sandison submitted that the servitude of support was not restricted to one building being required to take the weight of another building.

[30] In Troup v Aberdeen Heritable Securities and Investment Company Limited 1916 S.C. 918 certain observations were made in relation to the servitude oneris ferendi in a case where the gable of a building rested on top of a garden wall. At page 928 Lord Salvesen said this:

"In the view which I have taken it is unnecessary to consider the alternative argument presented for the defenders that they had, at all events, acquired by prescriptive possession for 40 years a servitude oneris ferendi. Mr Blackburn, for the pursuer, strenuously argued that the only example of this in Scots law is to be found in the case of flatted tenements. In my opinion that forms a special branch of the law relating to this servitude, and is not a pure example of it. A typical illustration of this servitude is just the one we have here, namely, the one proprietor builds on a wall or pillar belonging to his neighbour, and partly supports his own buildings thereon."

In Dalton v Angus (1881) 6 Appeal. Cas. 740, to which reference was made in Troup, in relation to the servitude of support Lord Chancellor Selborne stated that "in principle, the nature of such a servitude must be the same, whether it is claimed against a building on which another structure may wholly or partly rest, or against land on which lateral or vertical support is necessary for the safety and stability of that structure".

[31] In the light of the broad statement of principle in the passage quoted above from Stair and the observations in Troup and Dalton I am of the view that Ms Wolffe's contention that the servitude of support is restricted to the case of one building resting on another is not well founded. It seems to me that there is no reason why the arrangement here of supports for the ductwork resting or fixed into the solum of the neighbouring property could not fall within the servitude of support. It was not suggested that there was anything illogical in combining the two servitude rights of overhang and support in relation to the ductwork and I see no difficulty with that approach.

Question re possession

[32] A further issue that arises in relation to the possession of a servitude right for the prescriptive period relates to the nature of the possession. The use of the servitude right must be continuous and uninterrupted; the use must have been made in the direct assertion of a right; and the use in assertion of the right must have been acquiesced in by those having an interest to object (MacNab v Ferguson (1890) 17R 397: Lord Justice Clerk at p. 400). The acts of possession must be overt, being of such a character as to indicate to the proprietor of the servient tenement the fact that a right is asserted, and the nature of that act (McInroy v Duke of Atholl (1891) 18R (HL) 46: Lord Watson at p. 48; McGregor v Crieff Cooperative Society 1915 SC 93: Lord Dunedin at p. 104). In assessing the assertion of the right the court is to apply an objective test, having regard to the nature, quality and frequency of the user (Aberdeen City Council v Wanchoo 2008 SC 278: opinion of the court delivered by Lord Eassie at p. 284).

[33] Ms Wolffe submitted that the pursuers had failed to plead a relevant case of possession. The possession required to be more than an assertion that there had been possession for the period. The pursuers required to assert possession of a quality that would meet the tests. They had failed to do so and their pleadings as to the nature of their possession were irrelevant.

[34] Mr Sandison contended that the pursuers had pled a relevant case of possession characterised by the necessary nature, quality and frequency. The structure of the ductwork was large. It was obvious that it overhung and rested on the solum of the path. It had been in permanent use throughout the possession. Its use could scarcely be more overt; anyone seeing it would be well aware that an adverse right was being asserted.

[35] In my opinion the pleadings of the pursuers read as a whole do aver a relevant case of possession of the necessary nature, quality and frequency. The pursuers aver that they have been in continuous occupation of the premises since 1971, and, in particular, as proprietors since 1983. They aver that the manufacturing process upon which they are engaged requires an air conditioning system which has been installed throughout their occupation. The system is described, including the operation of the ductwork. The reference to the ductwork in the 1983 disposition is averred. The reservation to the superiors and others of the fire escape route is averred. The pursuers aver that Galgon, the previous owners of the property owned by the defender erected a fence along the south side of the path which might indicate that they acquiesced in the assertion by the pursuers of their right to use the ductwork. On any view the description of the ductwork in the pursuers' pleadings make clear the obvious nature of its existence and use.

Decision

[36] Mr Sandison submitted that the defender had failed to plead any contrary case as to the possession by the pursuers of the ductwork, its nature, quality and use, which use was open, peaceable and without judicial interruption for a continuous period in excess of twenty years. In these circumstances, it necessarily followed that the exercise of the rights of servitude were exempt from challenge and the pursuer must succeed. Under reference to Ellon Castle Estates v MacDonald 1975 SLT (Notes) 66 Mr Sandison invited me to grant decree de plano. M/s Wolffe submitted that the circumstances here were far removed from those in Ellon Castle Estates where there had been a short sharp issue of payment. The 1983 disposition was not self proving. It was fallacious to assume that what had been described in the 1983 disposition had remained unchanged until now. For example it was not clear what the squares in the strip shaded yellow on the plan represented. There was doubt as to whether there was a coherence between what was said in the deed and what was actually on the ground. There was an obvious dissonance between the terms of the deed and the photographs. There may be an issue as to title and the competing titles between the pursuers, whose title was registered in the General Regiter of Sasines and the defender's which derived from the Land Register. There may also be an issue in relation to the pursuers' application for planning permission. In addition, there was an issue raised in the pleadings as to when the pursuers took title and whether they have enjoyed possession for the prescriptive period. On any view, said Ms Wolffe, a proof relating to the possession of the premises by the pursuers would be necessary.

[37] In the light of the conclusions at which I have arrived in the course of this opinion I shall repel the first plea-in-law for the defender. While I have considerable reservation as to whether a proof is necessary, I consider that it would be going too far too fast to grant decree de plano without hearing further and more detailed submissions as to why a proof is necessary and whether the defender is seeking leave to amend by introducing averments along the lines indicated by Ms Wolffe. Accordingly, I shall put the case out by order for further discussion as to whether a proof on the question of possession is necessary. I shall reserve the question of expenses meantime.