Case Report: 1915 SC (HL) 93

Key points: Servitude right of way through shared pend – proof of use not available for the full prescriptive period – assumption of earlier use – observations on use ‘as of right’.

The facts: From a public street, a pend led between two adjoining buildings to ground at their rear; the owners of the building on one side of the pend, Crieff Co-operative Society Ltd (‘the Society’), wished to erect a new building on the background; the owners of the other building, McGregor & Others, (‘McGregors’), objected, because the new building would block a cart road, running from the street through the pend to the back of their property, over which they claimed a servitude right of way. McGregors sought an Interdict against the Society erecting the proposed building and thus obstructing the cart road. In order to establish a servitude right of way, McGregors required to prove 40 years’ use of the cart road, but in the event could only prove 38 years.

Decision: The Court held that evidence of use for 38 years did not justify the presumption of use for a longer period; such evidence might, however, warrant the inference of earlier use from instances of use prior to the 38-year period, so long as those instances were continuous with the later use of the 38 years which had been proved. Following on a detailed examination of the evidence, the Court stated that it was satisfied that continuous use for 40 years had been established, and granted interdict.

Comments: Note re the phrase ‘as of right’: One of the judges expressed the view that this phrase was inappropriate in rights of way cases where the question was often asked whether use was by tolerance of the proprietor (which would not establish a right of way), or ‘of right’ (which could establish one). He thought the correct question was whether it was by tolerance (which he equated to ‘with permission’) or whether it was ‘without permission’. This view was strongly disapproved of by the other judges as being misleading; in many cases landowners allowed people to use their paths, and while these people knew they were ‘tolerated’, few if any of them would have received either written or verbal permission.

This case illustrates that if a right of way is to be established by prescriptive use, proof of use for less than the full prescriptive period (then 40, now 20 years) is, as a rule, inadequate; however, if only a shorter period can be proved, then much will depend on the evidence of prior use which is available, and the Court may be prepared to infer that continuous use is, after all, established. Each case will depend on the evidence produced.

Cases referred to:
(1) Harvie v Rodgers (1828) 3 W&S 251 (Not in Ken).
(2) Young v Cuthbertson (1854) 1 MacQ 455 (Not in Ken).
(3) Mann v Brodie (1885) 12 R (HL) 52
(4) Edinburgh Corporation v North British Railway Company (1904) 6 F 620
(5) Rome v Hope Johnstone etc (1884) 11 R 653
(6) Folkestone Corporation v Brockman 1914 AC 338 (Not in Ken).
(7) McInroy v Duke of Athole (1891) 18 R (HL) 46

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