Macdiarmid and Another v. Moyes and Another [1900] ScotLR 37_437 (16 February 1900)

Macdiarmid and Another v. Moyes and Another [1900] ScotLR 37_437 (16 February 1900)

Where a servitude of passage is expressly granted by contract with a defined route and dimensions, the servient proprietor cannot alter or substitute the passage without the consent of the dominant proprietor, regardless of convenience. The Dean of Guild Court lacks jurisdiction to authorise works that would alter or obstruct such a servitude. The contractual terms are binding and must be enforced as written.

Citation
[1900] ScotLR 37_437
Parties
Appellants/objectors: John MacDiarmid and Robert Soutar; Respondent/petitioner: Mrs Moyes
Jurisdiction
Scotland
Judgment Date
16 February 1900
Procedural Posture
Appeal From Dean of Guild Court (magistrates of Perth) / Inner House, First Division, Court of Session (appellate Review)
Outcome
Appeal allowed; interlocutor of the Magistrate recalled.
Legal Topics
Servitude of Passage, Alteration of Defined Right of Way, Contractual Servitude, Urban Property Access, Jurisdiction of Dean of Guild Court
Property Law Servitude/easements Urban Planning Servitude of Passage Alteration of Defined Right of Way Contractual Servitude Urban Property Access Jurisdiction of Dean of Guild Court

Case Brief

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Parties

John MacDiarmid and Robert Soutar

Appellants/objectors

Mrs Moyes

Respondent/petitioner

Procedural Posture

Appeal From Dean of Guild Court (magistrates of Perth) / Inner House, First Division, Court of Session (appellate Review)

Legal Issues

  1. 1 Whether the proprietor of a servient tenement may alter the route of a contractually defined servitude of passage without the consent of the dominant tenement owner.
  2. 2 Whether a Dean of Guild Court has jurisdiction to sanction building works that would alter or obstruct a contractually defined servitude of passage.

Ratio Decidendi

Where a servitude of passage is expressly granted by contract with a defined route and dimensions, the servient proprietor cannot alter or substitute the passage without the consent of the dominant proprietor, regardless of convenience. The Dean of Guild Court lacks jurisdiction to authorise works that would alter or obstruct such a servitude. The contractual terms are binding and must be enforced as written.

Court Disposition

Appeal allowed; interlocutor of the Magistrate recalled.

Orders

  • Petitioner is not entitled to build upon, obstruct, or interfere with the footpath serving as access to respondents' properties.
  • Respondents are entitled to the full and free use of the footpath as access to their properties in future as in the past.