Caledonian Heritable Ltd v Canyon Investments Ltd [2000] ScotCS 324 (18 December 2000)

Caledonian Heritable Ltd v Canyon Investments Ltd [2000] ScotCS 324 (18 December 2000)

The averments relating to the pre-1983 situation and those concerning parts and pertinents are irrelevant and lacking in specification and are excluded from probation. The defenders' pleas of personal bar, acquiescence, and servitude rights raise issues of fact that require inquiry and cannot be dismissed at this stage.

Citation
[2000] ScotCS 324
Parties
Pursuer: Caledonian Heritable Limited; Defender: Canyon Investments Limited
Jurisdiction
Scotland
Judgment Date
18 December 2000
Procedural Posture
Civil / Procedure Roll Hearing (interlocutory)
Outcome
Partial exclusion of averments; proof before answer allowed on remaining issues.
Legal Topics
Encroachment, Servitude Rights, Personal Bar, Acquiescence, Parts and Pertinents
Property Law Civil Procedure Encroachment Servitude Rights Personal Bar Acquiescence Parts and Pertinents

Case Brief

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Parties

Caledonian Heritable Limited

Pursuer

Canyon Investments Limited

Defender

Procedural Posture

Civil / Procedure Roll Hearing (interlocutory)

Legal Issues

  1. 1 Whether the defenders have a right or title to maintain a fire escape encroaching on the pursuers' land
  2. 2 Whether the defenders can rely on personal bar, acquiescence, or servitude rights to resist removal of the fire escape
  3. 3 Whether the fire escape is a 'part and pertinent' of the defenders' property

Ratio Decidendi

The averments relating to the pre-1983 situation and those concerning parts and pertinents are irrelevant and lacking in specification and are excluded from probation. The defenders' pleas of personal bar, acquiescence, and servitude rights raise issues of fact that require inquiry and cannot be dismissed at this stage.

Court Disposition

Partial exclusion of averments; proof before answer allowed on remaining issues.

Orders

  • Averments relating to pre-1983 situation and parts and pertinents excluded from probation.
  • Defenders' eighth plea-in-law repelled.