Case Report: 1924 SC 385, 394

Key points: Private servitude right of access – servitude rights not subject to limitation – access by cart for agricultural purposes – general right of access for additional purposes.

The facts: Spence owned land in St Andrews, and this property adjoined land belonging to Carstairs. In order to reach his land, Spence had enjoyed a servitude right of access over a road on Carstairs’ property and had used that road for cartage, for ‘agricultural and general’ purposes only. Spence now sought to use the road for the cartage of building materials for buildings he was erecting on his lands. Carstairs sought interdict to prevent this extended use.

Decision: Private servitude rights of way acquired by prescription do not, in general, suffer from any specific limitation as to the type of use to which they may be put (this is to be distinguished from private servitude rights of way given by express grant, which are strictly limited by the terms of the grant). Hence, as Spence had provided enough evidence to justify the Court in finding that he enjoyed a general right of access over Carstairs’ ground, he was, therefore, entitled to extend the type of use to include cartage of building materials.

Comments: This is a case reported in considerable detail, following copious citation of legal authorities. It confirmed the principle that the greater or more burdensome servitude, such as cartage, also included less burdensome servitudes, such as pedestrian rights. It was indicated in the course of the judgements that certain servitude rights of access might be limited by reason of the destination or terminal point of the route and the activities conducted there, e g a route leading to a mill, a peat moss or a parish church.

Cases referred to: There was a comprehensive reference to legal decisions both in England and in Scotland. Readers interested in pursuing this decision further would require to study the case in detail.

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