Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 204
A880/09	OPINION OF LORD DOHERTY in the cause ROGER JONES and KATHERINE JONES Pursuers; against WILLIAM HENDERSON GRAY and EDNA DRUMMOND ROSS or GRAY Defender: ­­­­­­­­­­­­­­­­­________________

Pursuers: Hanretty QC; Andersons Solicitors LLP

Defender: D.M. Thompson; Burness LLP

13 December 2011

Introduction

[1] The pursuers are the heritable proprietors of the dwellinghouse at 38 Montgomerie Drive, Fairlie ("No. 38"). The defenders are the heritable proprietors of the dwellinghouse at 40 Montgomerie Drive ("No. 40"). No. 40 is situated at the end of a lane which runs from it to Montgomerie Drive. The lane lies alongside the north-eastern boundary of No. 38. The title to No. 40 extends to and includes a small triangular area of the lane, which adjoins the remainder of the land comprising No. 40 (and can be seen on the plan 6/6 of Process). At the western extremity of No. 38, to the rear of the dwellinghouse and next to the boundary with No. 40, there is a garage. The triangular area is situated close to and to the north of the garage.

[2] The pursuers claim that No. 38 has a servitude right of access for pedestrian and vehicular traffic from the garage and the rear part of the property over the triangular area to the rest of the lane. They aver that the right has been constituted by possession and use by their predecessors in title and by them for the prescriptive period. They seek declarator of the servitude right; interdict of the defenders from obstructing or encroaching on, building on or over, or interfering with the triangular area; decree ordaining the defenders to remove certain obstructions erected by them; and damages. The matter came before me for a procedure roll hearing. The defenders sought dismissal.

Prescription and Limitation (Scotland) Act 1973, section 3(2)

[3] It was common ground between the parties that the relevant statutory basis for prescription of the right which the pursuers claimed was the Prescription and Limitation (Scotland) Act 1973, section 3(2), which provides:

"If a positive servitude over land has been possessed for a continuous period of twenty 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."

The pursuers' averments
Possession
[4] In Cond. 8 the pursuers aver:

"Pedestrian and vehicular access to and from Montgomerie Drive over the lane, and the area of ground at the foot of the lane was taken by the pursuers' predecessors in title, Anne Andrews and David Andrews. Such access was taken from the date of entry on or around 2 April 1979 until on or around June 2007. The pursuers' predecessors in title had enjoyed the free and uninterrupted use of the said lane and area of ground at the foot of the lane as a means of pedestrian and vehicular access from the rear of the pursuers' property, and Montgomerie Drive. The pursuers' predecessors in title took vehicular and pedestrian access to and from Montgomerie Drive through the lane and across the area of ground at the foot of the lane to their property, which access included: taking access to their garage from Montgomerie Drive, through the garage doors fronting the area at the foot of the lane; parking their car in the garage; unloading their car directly into the garage; moving a sailing dinghy that was stored from time to time in the garage; removing garden waste; and depositing and collecting items stored in the garage. Mrs Andrews used the garage for the storage of her car on a daily basis. Their use made of the said access for the storage of the family's dinghy was from time to time. The use of the said access was consistent with exercise thereof as a matter of right. Pedestrian and vehicular access to and from Montgomerie Drive over the lane and the area of ground at the foot of the lane was then taken by the pursuers from on or around June 2007. The pursuers took access to the garage to park their car, unload items directly from their car into the garage and to take access from the lane through the garage doors. The servitude has been possessed for a continuous period of 20 years, openly, peaceably and without judicial interruption, as the defenders knew or ought to have known."

Damages
[5] The pursuers aver (Cond. 9) that in or around May 2008 the defenders erected a locked post in the lane and around July 2008 they erected a fence in front of the pursuers' garage doors; that the post and fence obstructed vehicular and pedestrian access to the pursuers' garage from the lane; that some of the fence posts were fixed to the roof of the pursuers' garage which damaged it; and that the defenders have refused to remove these obstructions. In Cond. 10 and 11 the pursuers aver:

"Cond. 10. The access to the garage doors fronting the lane having been obstructed the pursuers are now prevented from parking the car in their garage; from unloading items from their car directly into the garage; from taking pedestrian access to and from the lane through the garage doors; and from taking vehicular access to the garage from the lane. The pursuers' enjoyment of their property has been materially affected by the defenders' obstruction of access to the garage and lane...."

Cond.11. ...The said access is necessary for the convenient and comfortable enjoyment of the pursuers' property and by the obstruction of their access they have already suffered inconvenience. The inconvenience and loss caused to the pursuers by the obstruction of the access and damage to their garage, the pursuers moderately estimate at the sum of Two Thousand Nine Hundred Pounds Sterling. This sum they claim from the defenders as the amount of damage they have suffered through being deprived of the right of access referred to and the damage caused to their garage by the erection of the fence..."

The defenders' contentions

[6] Mr Thomson moved for dismissal of the action. His principal submission was that the pursuers' averments as to possession were irrelevant and lacking in specification. The pursuers had not adequately spelled out what they were saying in relation to the continuity, volume and frequency of possession. The averments were not apt to demonstrate that possession had been continuous for at least the prescriptive period: and there were not appropriate and specific averments that the possession had been open and as of right (McInroy's Trs v Duke of Athole (1891) 18 R (HL) 46 per Lord Watson at page 48). While matters had to be judged objectively (Aberdeen City Council v Wanchoo 2008 SC 278), the averments were not habile for proof that the possession relied upon had the necessary qualities. It was not averred, for example, that it took place during daylight hours or that it had been observed by the defenders and their predecessors in title. The averment that the defenders "knew or ought to have known" of the possession was no more than a bald assertion. There were no averments of facts and circumstances from which the inference of such knowledge could be drawn. In relation to the possession founded upon between 1979 and the defenders' taking entry in May 1988 there was not even a bald averment of knowledge on the part of the defenders' predecessors in title.

[7] Mr Thomson recognised and accepted that some of the pursuers' averments provided appropriate specification of the continuity and frequency of a particular activity viz. the averment that Mrs Andrews stored her car in the garage on a daily basis. He submitted that the same could not be said in respect of other averments concerning possession. Use "from time to time" in connection with a dinghy was vague and did not give fair notice of the frequency of the activity or the period over which it occurred. With the other activities mentioned there was no notice at all of the frequency of them, or of the period over which they occurred. It was averred that the vehicular and pedestrian access taken by the pursuers' predecessors "included" the activities condescended upon. Fair notice demanded that if any other activities were to be founded upon they should be specified.

[8] In concluding his primary submission Mr Thomson recognised that a case ought not to be dismissed on grounds of irrelevancy unless it must necessarily fail even if all the pursuers' averments are proved (Jamieson v Jamieson 1952 S.C. (HL) 44, per Lord Normand at page 50). He suggested that the position here was akin to that in Nunn v Nunn 1997 SLT 182 where, in circumstances where the pursuer's averments gave the defender no fair notice of the pursuer's position on important matters and the means of clarification was within the pursuer's own knowledge, the action had been dismissed.

[9] Mr Thomson's secondary submission was that I should not admit to probation - for the same reasons already advanced - virtually all of the pursuers' averments in Cond. 8 other than the averments relating to Mrs Andrews parking her car in the garage. In addition he submitted that the pursuers' averments anent damages were lacking in specification and ought not to be admitted to probation. The sum of £2,900 sought was a composite sum for inconvenience as a result of the obstruction of access and for physical damage to the garage: it was not broken down into its component parts. Further, the pursuers had not specified what the physical damage to the garage was, or how the loss claimed in respect of it had been measured (e.g. cost of repairs or diminution in value).

The pursuers' contentions

[10] Mr Hanretty submitted that the pursuers had made relevant and sufficiently specific averments of prescriptive possession by them and their predecessors. The pursuers' position on record was that the activities described in Cond. 8 had been carried on by their predecessors throughout the period between 1979 and June 2007. It was not necessary for use to be constant provided, having regard to its nature, that it was continuous. The pursuers had given a good deal of specification of the activities founded upon - perhaps more than they need have. The pursuers' averments were relevant and sufficient to establish that possession had been open, peaceable and as of right throughout the period condescended upon. The scenario here was very different from the one considered in McInroy's Trs. v Duke of Athole. There the possession had been exercised in a very remote rural location. Here, given the nature, quality and frequency of the user, the urban location, and the very close proximity of the two tenements, it was far easier to infer knowledge on the part of the occupiers of the servient tenement. It was not necessary to aver specifically that the defenders' predecessors in title knew or ought to have known of the use being made by Mr and Mrs Andrews of the access: it was enough that the pursuers' averred that their possession had been open and peaceable, and as of right. The inference from such possession was that the occupiers from time to time of No. 40 knew or ought to have known of it. If he was wrong about that then he would wish an opportunity to seek leave to amend to insert the necessary formal averment relating to the defenders' predecessors. On no view could it be said that the pursuers' averments were irrelevant; or so lacking in specification as to be irrelevant; or that they failed to give the defenders fair notice on important matters. The same observations applied to the defenders' secondary submission: and while he accepted that in relation to damages the pursuers' averments did not allocate the sum of £2,900 between the two heads (physical damage to the shed and damages for inconvenience) it was clear enough what was being claimed, and the sum involved was relatively small. On this point too, if I were against him, I understood him to wish an opportunity to seek leave to amend.

[11] Mr Hanretty moved me to allow a proof before answer. He also indicated that the pursuers' fifth plea-in-law was inappropriate and that it should be repelled of consent.

Discussion

[12] In my opinion the pursuers' averments are suitable for inquiry. In those circumstances it is not appropriate that I deal at length with the issues which were debated. I do not accept that the pursuers' averments of prescriptive possession are so lacking in specification as to be irrelevant; or that there is a lack of fair notice on important matters. In large part I accept the contentions for the pursuers which I have noted above.

[13] The pursuers' case is that the category of servitude of way which has been constituted is for vehicular traffic. A way for vehicular traffic also includes less burdensome uses, such as pedestrian traffic (Carstairs v Spence 1924 SC 380 per Lord President Clyde at page 385). Several purposes of the vehicular traffic use are condescended upon, the main one having been to enable a car to be taken to, and from, and housed in, the garage: other purposes appear to be ancillary, incidental or of a secondary nature, or to involve pedestrian use.

[14] The pursuers' principal claim is that a servitude of way for vehicular traffic has been constituted by prescriptive possession, the possession founded upon having been continuous, open, peaceable and as of right. Both parties recognised that possession did not have to be constant to be continuous: it was sufficient that the use was exercised sufficiently regularly to establish a pattern of prescriptive possession (see e.g. Hamilton v McIntosh Donald Ltd 1994 S.C. 304 per Lord Justice Clerk Ross at page 323 B-E; Prescription and Limitation, D. Johnston, page 309). Here, the garage is said to have been used by the Andrews family in connection with a car on a daily basis between 1979 and 2007, and there is said to have been access by car between the garage and Montgomerie Drive across the triangular area. Having regard to that, as well as the other purposes for which access is said to have been taken, it cannot be said at this stage that if the pursuers prove their averments they will not establish that there has been continuous possession.

[15] The prescriptive possession founded upon is averred to have been open and as of right. It that is indeed so then, having regard to the nature and character of the use described and the close proximity of No. 38 and No. 40, it may readily be inferred that the use was known, or ought to have been known, to the possessors of the servient tenement. In McInroy's Trs. Lord Watson observed (at page 48-49):

"I do not doubt that, in order to found a prescriptive right of servitude according to Scots law, acts of possession must be overt, in the sense that they must in themselves be of such a character or be done in such circumstances as to indicate unequivocally to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right. The proprietor who seeks to establish the right cannot, in my opinion, avail himself of any acts of possession in alieno solo, unless he is able to show that they either were known, or ought to have been known, to its owner or to the persons to whom he has entrusted the charge of the property.

In many - indeed in most - cases where a servitude of way is claimed, the natural and necessary inference arising from its local situation is that the user must have been known to the owner of the solum or to those whose duty it was to give him information. But that is an inference which it would be very unsafe to derive from the mere fact of the occasional user of an isolated deer tract (sic), in a region remote from public observation, which is only visited at rare intervals by a few sportsmen, foresters, or shepherds."

No. 38 and No. 40 are each relatively small urban properties, in an urban developed area, and both adjoin the same lane giving access to Montgomerie Drive. The pursuers aver use of the lane and the triangular area for access by their predecessors, and then by themselves, for a period of 29 years. The use is said to have been for both vehicular and pedestrian access. The only vehicular access to No. 40 was by the lane and across the same triangular area. Prima facie, the scenario described by the pursuers' pleadings may well be one where "the natural and necessary inference from its local situation is that the user must have been known to the owner of the solum". In the circumstances, the criticism that the pursuers have not specifically averred that the defenders' predecessors knew or ought to have known of the prescriptive possession does not appear to me to be one of substance. It is sufficient that they have averred that the possession was open and as of right.

[16] The averment that the access exercised "included" certain specified modes is not irrelevant; nor, in my opinion, is it lacking in specification in respect of the description of the modes of access which have been provided. The complaint is that the word "included" suggests that the pursuers may also seek to lead evidence of other unspecified modes of which no notice has been given. If that were to happen the defenders would be entitled to object to such evidence being led: and if the matter is material and the defenders are prejudiced by the lack of notice the pursuers will run a real risk of the objection being sustained. For my part, I do not consider use of the word "included" by the pursuers will reserve for them a free hand to lead evidence of modes of access different to those which have been specified by them on record.

[17] While the pursuers' averments anent damages are not felicitously framed (and it would have been desirable for the sum of £2,900 to have been broken down into its two component parts) in my opinion it would not be just to refuse to admit them to probation. The damages claim is very much a subsidiary issue. It is highly unlikely that the points the defenders make anent damages would have been advanced had they not been making the other criticisms they have put forward. I very much doubt whether they will suffer any real prejudice at proof in this regard.

[18] In the result I am not satisfied that any of the criticisms made by the defenders of the pursuers' pleadings are compelling enough to justify dismissal of the action. So far as relevancy is concerned, this does not appear to me to be a case where, applying the familiar test set out by Lord Normand in Jamieson v Jamieson (at page 50), it can be said that the pursuers must necessarily fail even if all their averments are proved. Several of the issues between the parties involve questions of fact and degree which are only capable of determination after a proof (e.g. whether possession was continuous: see Hamilton v McIntosh Donald Ltd, supra per Lord Justice Clerk Ross at page 323 B-E). Further, I am not persuaded that there is a lack of fair notice on important matters and that dismissal, or refusal to admit averments to probation, should follow. The circumstances of Nunn v Nunn appear to me to be clearly distinguishable: there the defender faced vague, incomplete and inconsistent averments in circumstances in which the means of clarification were within the pursuer's own knowledge.

Disposal

[19] I shall repel the pursuers' fifth plea-in-law. Quoad ultra I shall allow a proof before answer.