HAMILTON AGAINST THE SCOTTISH MINISTERS [2017] ScotCS CSOH_121 (15 September 2017)

HAMILTON AGAINST THE SCOTTISH MINISTERS [2017] ScotCS CSOH_121 (15 September 2017)

The pursuer has a natural right of drainage from his land over the adjoining M74 property, and the defenders are interfering with this right due to the presence of a void and blockage in the drainage system on M74 land, which prevents proper drainage and causes flooding. The pursuer is not unduly pressing his right, and the declarator should be granted.

Citation
[2017] ScotCS CSOH_121
Parties
Pursuer: Gavin Hamilton; Defender: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
15 September 2017
Procedural Posture
Proof Before Answer / Liability Determination
Outcome
Declarator granted in favour of pursuer; case put out by order for precise terms and further procedure; expenses reserved.
Legal Topics
Natural Right of Drainage, Servitude, Res Merae Facultatis, Interference With Drainage, Equitable Regulation
Property Law Servitude Drainage Rights Natural Right of Drainage Res Merae Facultatis Interference With Drainage Equitable Regulation

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Parties

Gavin Hamilton

Pursuer

The Scottish Ministers

Defender

Procedural Posture

Proof Before Answer / Liability Determination

Legal Issues

  1. 1 Does the pursuer have a natural right of drainage over the defenders' land?
  2. 2 Has the M74 interfered with the pursuer's natural right of drainage?
  3. 3 Is the pursuer unduly pressing his right to the detriment of the defenders?

Ratio Decidendi

The pursuer has a natural right of drainage from his land over the adjoining M74 property, and the defenders are interfering with this right due to the presence of a void and blockage in the drainage system on M74 land, which prevents proper drainage and causes flooding. The pursuer is not unduly pressing his right, and the declarator should be granted.

Court Disposition

Declarator granted in favour of pursuer; case put out by order for precise terms and further procedure; expenses reserved.

Orders

  • Grant declarator that pursuer has a natural right of drainage over M74 property and that the M74 interferes with said right.
  • Require full exploration of connecting the lower drainage pipe into the B7078 drainage system.