RECLAIMING MOTION BY MAJOR DOUGLAS BOWRING SOULSBY AGAINST RICHARD JAMES JONES AND ANOTHER [2021] ScotCS CSIH_48 (22 September 2021)

RECLAIMING MOTION BY MAJOR DOUGLAS BOWRING SOULSBY AGAINST RICHARD JAMES JONES AND ANOTHER [2021] ScotCS CSIH_48 (22 September 2021)

A servitude right of access cannot be constituted by necessity or by facts and circumstances alone; it must be created by agreement, prescription, or equivalent. The evidence did not demonstrate sufficient overt, unequivocal, and frequent use to establish a servitude by prescription. Occasional access was attributable to tolerance, not assertion of right. The reclaiming motion fails as no servitude exists.

Citation
[2021] ScotCS CSIH_48
Parties
Pursuer and Reclaimer: Major Douglas Bowring Soulsby; Defender and Respondent: Richard James Jones; Defender and Respondent: Kirsten Natalie Jones
Jurisdiction
Scotland
Judgment Date
22 September 2021
Procedural Posture
Reclaiming Motion (appeal) / Final Appellate Judgment
Outcome
Reclaiming motion refused; cross-appeal not formally ordered.
Legal Topics
Servitude, Positive Prescription, Servitude of Necessity, Variation of Servitude, Encroachment, Equitable Discretion
Property Law Real Rights Servitude Positive Prescription Servitude of Necessity Variation of Servitude Encroachment Equitable Discretion

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Parties

Major Douglas Bowring Soulsby

Pursuer and Reclaimer

Richard James Jones

Defender and Respondent

Kirsten Natalie Jones

Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) / Final Appellate Judgment

Legal Issues

  1. 1 Whether a servitude right of access exists over the defenders' strip of land by prescription or necessity
  2. 2 Whether the servitude can be varied or encroached upon by building
  3. 3 Whether removal of the extension is required

Ratio Decidendi

A servitude right of access cannot be constituted by necessity or by facts and circumstances alone; it must be created by agreement, prescription, or equivalent. The evidence did not demonstrate sufficient overt, unequivocal, and frequent use to establish a servitude by prescription. Occasional access was attributable to tolerance, not assertion of right. The reclaiming motion fails as no servitude exists.

Court Disposition

Reclaiming motion refused; cross-appeal not formally ordered.