Inglis v. Clark [1901] ScotLR 39_193 (07 December 1901)

Inglis v. Clark [1901] ScotLR 39_193 (07 December 1901)

A negative servitude of light cannot be established by implied grant under Scots law. In the absence of an express grant or restriction in the titles, the proprietor is entitled to build on his property even if this deprives a neighbour's building of light and air. The law of tenement, which may allow implied servitudes between parts of a single building, does not apply to separate and independent lots. The Dean of Guild's decision was based on a misapplication of Heron v. Gray, which is distinguishable and not authoritative for this situation.

Citation
[1901] ScotLR 39_193
Parties
Petitioner/appellant: Peter Inglis; Respondent/objector: Andrew Renfrew Clark
Jurisdiction
Scotland
Judgment Date
07 December 1901
Procedural Posture
Appeal From Dean of Guild Court (petition for Building Lining) / Inner House, Court of Session (final Judgment)
Outcome
Appeal sustained; interlocutor of Dean of Guild recalled; respondent's pleas repelled; case remitted to Dean of Guild to grant lining.
Legal Topics
Negative Servitude, Servitude of Light, Implied Grant, Building Rights, Severance of Property
Property Law Real Estate Servitudes Negative Servitude Servitude of Light Implied Grant Building Rights Severance of Property

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Parties

Peter Inglis

Petitioner/appellant

Andrew Renfrew Clark

Respondent/objector

Procedural Posture

Appeal From Dean of Guild Court (petition for Building Lining) / Inner House, Court of Session (final Judgment)

Legal Issues

  1. 1 Can a negative servitude of light be established by implied grant under Scots law?
  2. 2 Does the severance of adjoining plots with pre-existing buildings create an implied servitude of light for the benefit of one over the other?

Ratio Decidendi

A negative servitude of light cannot be established by implied grant under Scots law. In the absence of an express grant or restriction in the titles, the proprietor is entitled to build on his property even if this deprives a neighbour's building of light and air. The law of tenement, which may allow implied servitudes between parts of a single building, does not apply to separate and independent lots. The Dean of Guild's decision was based on a misapplication of Heron v. Gray, which is distinguishable and not authoritative for this situation.

Court Disposition

Appeal sustained; interlocutor of Dean of Guild recalled; respondent's pleas repelled; case remitted to Dean of Guild to grant lining.

Orders

  • Sustain the appeal and recall the interlocutor appealed against.
  • Repel the pleas-in-law for the respondent Andrew Renfrew Clark.