Bell & Anor v. Campbell [2006] ScotCS CSIH_15 (28 February 2006)

Bell & Anor v. Campbell [2006] ScotCS CSIH_15 (28 February 2006)

There was a stateable defence to the Sheriff Court action as evidence did not establish the existence or precise line of the claimed servitude of access, particularly vehicular access, as at the relevant date; the express grant was not wholly invalid, and any implied grant would not coincide with the route claimed. The Lord Ordinary reached the correct conclusion in granting reduction.

Citation
[2006] ScotCS CSIH_15
Parties
Pursuers and Respondents: Angus Bell and Another; Defender and Appellant: Mrs. Flora Brown Campbell or Fiddes
Jurisdiction
Scotland
Judgment Date
28 February 2006
Procedural Posture
Reclaiming Motion in Action of Reduction / Appeal (inner House, Court of Session)
Outcome
Reclaiming motion refused
Legal Topics
Servitude of Access, Reduction of Decree, Implied Grant of Servitude, Variation of Access Route
Property Law Civil Procedure Servitude of Access Reduction of Decree Implied Grant of Servitude Variation of Access Route

Case Brief

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Parties

Angus Bell and Another

Pursuers and Respondents

Mrs. Flora Brown Campbell or Fiddes

Defender and Appellant

Procedural Posture

Reclaiming Motion in Action of Reduction / Appeal (inner House, Court of Session)

Legal Issues

  1. 1 Whether there was a stateable defence to the Sheriff Court action granting servitude of access
  2. 2 Validity and scope of express grant of servitude
  3. 3 Possibility of implied grant of servitude

Ratio Decidendi

There was a stateable defence to the Sheriff Court action as evidence did not establish the existence or precise line of the claimed servitude of access, particularly vehicular access, as at the relevant date; the express grant was not wholly invalid, and any implied grant would not coincide with the route claimed. The Lord Ordinary reached the correct conclusion in granting reduction.

Court Disposition

Reclaiming motion refused

Orders

  • Sheriff Court interlocutor reduced
  • Interdict granted in terms sought