Appeal in the cause Whamond against Klasa (Sheriff Appeal Court Civil) [2025] SACCIV 28 (29 August 2025)

Appeal in the cause Whamond against Klasa (Sheriff Appeal Court Civil) [2025] SACCIV 28 (29 August 2025)

There was insufficient admissible evidence to establish a servitude by implied grant as of 1966, due to the inadmissibility of Mr Whitworth's expert opinion on the age of the original septic tank. However, a servitude right of drainage was established by positive prescription through open, peaceable, and uninterrupted use from at least 1977 to 2016. The servitude was not abandoned by the relocation of the septic tank in 2016, as there was no clear and unequivocal intention to relinquish the right; the change was by mutual agreement and did not alter the character or necessity of the right.

Citation
[2025] SACCIV 28
Parties
Pursuer, Respondent and Cross Appellant: Graham David Whamond; Pursuer, Respondent and Cross Appellant: Sally Marie Whamond; Defender, Appellant and Cross Respondent: Eliasz Szczepan Klasa; Defender, Appellant and Cross Respondent: Ilona Maria Klasa
Jurisdiction
Scotland
Judgment Date
29 August 2025
Procedural Posture
Civil Appeal / Sheriff Appeal Court (final Appellate Decision)
Outcome
Appeal and cross-appeal each allowed in part. Sheriff’s interlocutors recalled. Declarator granted that a servitude right of drainage exists by positive prescription and has not been abandoned. No servitude by implied grant or to the new septic tank established.
Legal Topics
Servitude of Drainage, Implied Grant of Servitude, Positive Prescription, Abandonment of Servitude, Variation of Servitude, Admissibility of Expert Evidence
Property Law Servitudes and Easements Scottish Civil Procedure Servitude of Drainage Implied Grant of Servitude Positive Prescription Abandonment of Servitude Variation of Servitude +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 18 Party arguments 2
Sign in to unlock

Parties

Graham David Whamond

Pursuer, Respondent and Cross Appellant

Sally Marie Whamond

Pursuer, Respondent and Cross Appellant

Eliasz Szczepan Klasa

Defender, Appellant and Cross Respondent

Ilona Maria Klasa

Defender, Appellant and Cross Respondent

Procedural Posture

Civil Appeal / Sheriff Appeal Court (final Appellate Decision)

Legal Issues

  1. 1 Whether a servitude right of drainage exists over Willow Cottage for the benefit of Spring Garth by implied grant or positive prescription
  2. 2 Whether the servitude right was abandoned or varied by the relocation of the septic tank in 2016
  3. 3 Admissibility and sufficiency of expert evidence regarding the age and use of the original septic tank

Ratio Decidendi

There was insufficient admissible evidence to establish a servitude by implied grant as of 1966, due to the inadmissibility of Mr Whitworth's expert opinion on the age of the original septic tank. However, a servitude right of drainage was established by positive prescription through open, peaceable, and uninterrupted use from at least 1977 to 2016. The servitude was not abandoned by the relocation of the septic tank in 2016, as there was no clear and unequivocal intention to relinquish the right; the change was by mutual agreement and did not alter the character or necessity of the right.

Court Disposition

Appeal and cross-appeal each allowed in part. Sheriff’s interlocutors recalled. Declarator granted that a servitude right of drainage exists by positive prescription and has not been abandoned. No servitude by implied grant or to the new septic tank established.

Orders

  • Recall sheriff's interlocutors of 4 November 2024 and 26 November 2024
  • Delete and amend findings in fact as specified