Graham David Whamond and another against Eliasz Szczepan Klasa and another (Sheriff Court Civil) [2024] SCFOR 46 (04 November 2024)

Graham David Whamond and another against Eliasz Szczepan Klasa and another (Sheriff Court Civil) [2024] SCFOR 46 (04 November 2024)

A servitude of drainage exists by implication of grant from the 1966 disposition, as the drainage system is necessary for the convenient and comfortable enjoyment of the pursuers' property, and the terms of the relevant dispositions do not exclude such a grant. The prescriptive right was abandoned by the physical relocation and filling in of the old tank in 2016, but the implied servitude remains. The defenders are not entitled to interfere with the pursuers' drainage system.

Citation
[2024] SCFOR 46
Parties
Pursuer: Graham David Whamond; Pursuer: Sally Marie Whamond; Defender: Eliasz Szczepan Klasa; Defender: Ilona Maria Klasa
Jurisdiction
Scotland
Judgment Date
04 November 2024
Procedural Posture
Civil (sheriff Court) / Judgment After Proof Before Answer
Outcome
Declarator granted in favour of the pursuers as sought in crave 1; craves 2 and 3 refused for lack of insistence; expenses reserved.
Legal Topics
Implied Servitude, Servitude by Prescription, Drainage Rights, Land Registration, Burden of Proof, Abandonment of Servitude
Property Law Real Estate Servitudes and Easements Implied Servitude Servitude by Prescription Drainage Rights Land Registration Burden of Proof +1 more

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Parties

Graham David Whamond

Pursuer

Sally Marie Whamond

Pursuer

Eliasz Szczepan Klasa

Defender

Ilona Maria Klasa

Defender

Procedural Posture

Civil (sheriff Court) / Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether the pursuers enjoy a servitude of drainage over the defenders' property by implication of grant or prescription
  2. 2 Whether the relocation of the septic tank and rerouting in 2016 constituted abandonment of any prescriptive servitude
  3. 3 Whether the defenders are entitled to interfere with the pursuers' drainage system

Ratio Decidendi

A servitude of drainage exists by implication of grant from the 1966 disposition, as the drainage system is necessary for the convenient and comfortable enjoyment of the pursuers' property, and the terms of the relevant dispositions do not exclude such a grant. The prescriptive right was abandoned by the physical relocation and filling in of the old tank in 2016, but the implied servitude remains. The defenders are not entitled to interfere with the pursuers' drainage system.

Court Disposition

Declarator granted in favour of the pursuers as sought in crave 1; craves 2 and 3 refused for lack of insistence; expenses reserved.

Orders

  • It is declared that the pursuers as heritable proprietors of Spring Garth, Cauldcots, Arbroath (ANG 16642) enjoy the benefit of a servitude of drainage over the defenders' property at Willow Cottage, Cauldcots, Arbroath (ANG 12351), including a right to use the drainage system installed there comprising the pipes,...
  • Second and third craves refused for lack of insistence.