Robertson and Others v. Bruce [1905] ScotLR 42_449 (15 March 1905)

Robertson and Others v. Bruce [1905] ScotLR 42_449 (15 March 1905)

The defender's title confers only a right of access to the upper flat via the staircase, not a right of property; possession and exclusive use do not convert this servitude into ownership. The building restriction against structures higher than 12 feet is a general condition applicable to all steadings and has been discharged by acquiescence, as pursuers themselves consented to violations on adjacent properties.

Citation
[1905] ScotLR 42_449
Parties
Pursuers: James Hinton Robertson and others, as trustees for J. M. & J. H. Robertson, writers, Glasgow; Defender: John Wilson Bruce, accountant, Glasgow
Jurisdiction
Scotland
Judgment Date
15 March 1905
Procedural Posture
Action of Declarator and Interdict / Inner House, Second Division, Reclaiming Motion Against Lord Ordinary's Interlocutor
Outcome
Lord Ordinary's interlocutor recalled; found for pursuers on declarator and interdict regarding staircase; assoilzied defender from conclusions regarding building restrictions on background.
Legal Topics
Servitude, Right of Access, Building Restrictions, Common Interest, Acquiescence, Prescriptive Possession
Property Law Servitude Right of Access Building Restrictions Common Interest Acquiescence Prescriptive Possession

Case Brief

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Parties

James Hinton Robertson and others, as trustees for J. M. & J. H. Robertson, writers, Glasgow

Pursuers

John Wilson Bruce, accountant, Glasgow

Defender

Procedural Posture

Action of Declarator and Interdict / Inner House, Second Division, Reclaiming Motion Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether pursuers are proprietors of the staircase and entitled to interdict defender from altering it
  2. 2 Whether pursuers are entitled to prevent defender from erecting buildings on the background higher than 12 feet

Ratio Decidendi

The defender's title confers only a right of access to the upper flat via the staircase, not a right of property; possession and exclusive use do not convert this servitude into ownership. The building restriction against structures higher than 12 feet is a general condition applicable to all steadings and has been discharged by acquiescence, as pursuers themselves consented to violations on adjacent properties.

Court Disposition

Lord Ordinary's interlocutor recalled; found for pursuers on declarator and interdict regarding staircase; assoilzied defender from conclusions regarding building restrictions on background.

Orders

  • Declarator of property in staircase granted to pursuers
  • Interdict granted against defender altering staircase