William & Anor v. Sinclair & Anor [2006] ScotSC 10 (23 February 2006)

William & Anor v. Sinclair & Anor [2006] ScotSC 10 (23 February 2006)

Historic possession or past user is irrelevant to define the extent of rights of co-proprietors over a mutual access way held in common property; ordinary use is determined by the nature of the property, and the title phrase 'with access thereover on all necessary occasions' does not restrict the ordinary right of access inherent in common property.

Citation
[2006] ScotSC 10
Parties
Pursuer and Respondent: Daniel William Apps; Pursuer and Respondent: Janice Apps; Defender and Appellant: William Grant Sinclair; Defender and Appellant: Christine Sinclair
Jurisdiction
Scotland
Judgment Date
23 February 2006
Procedural Posture
Appeal (sheriff Principal) / Judgment on Appeal Against Sheriff's Interlocutor
Outcome
Appeal refused; sheriff's interlocutor adhered to.
Legal Topics
Common Property, Co Ownership, Access Rights, Interpretation of Title Deeds
Property Law Civil Procedure Common Property Co Ownership Access Rights Interpretation of Title Deeds

Case Brief

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Parties

Daniel William Apps

Pursuer and Respondent

Janice Apps

Pursuer and Respondent

William Grant Sinclair

Defender and Appellant

Christine Sinclair

Defender and Appellant

Procedural Posture

Appeal (sheriff Principal) / Judgment on Appeal Against Sheriff's Interlocutor

Legal Issues

  1. 1 Whether historic use is relevant to define extent of rights over a mutual access way held in common property
  2. 2 Whether the phrase 'with access thereover on all necessary occasions' in the title restricts the ordinary use of the access way by co-proprietors

Ratio Decidendi

Historic possession or past user is irrelevant to define the extent of rights of co-proprietors over a mutual access way held in common property; ordinary use is determined by the nature of the property, and the title phrase 'with access thereover on all necessary occasions' does not restrict the ordinary right of access inherent in common property.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to.

Orders

  • Certifies appeal as suitable for employment of junior counsel
  • Finds defenders and appellants liable to pursuers and respondents in expenses of the appeal and debate before the sheriff