Carstairs v. Spence [1924] ScotLR 297 (09 February 1924)

Carstairs v. Spence [1924] ScotLR 297 (09 February 1924)

The Court held that the defender had acquired by prescription a servitude of way for carts over the pursuers' land, and that such servitude is not limited to agricultural or market garden purposes but extends to all purposes connected with the enjoyment of the dominant tenement, including the carting of building materials for construction.

Citation
[1924] ScotLR 297
Parties
Pursuer: Mrs Jessie Lindsay or Carstairs; Pursuer: David Carstairs; Defender: John D. Spence
Jurisdiction
Scotland
Judgment Date
09 February 1924
Procedural Posture
Civil / Appeal From Sheriff Court to Court of Session, Inner House, First Division
Outcome
Appeal sustained; interlocutor of Sheriff-Substitute recalled; defender assoilzied from conclusions of the action.
Legal Topics
Servitude of Way, Prescription, Acquisition by Possession, Scope of Servitude Rights
Property Law Real Estate Law Servitude of Way Prescription Acquisition by Possession Scope of Servitude Rights

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Parties

Mrs Jessie Lindsay or Carstairs

Pursuer

David Carstairs

Pursuer

John D. Spence

Defender

Procedural Posture

Civil / Appeal From Sheriff Court to Court of Session, Inner House, First Division

Legal Issues

  1. 1 Whether the defender acquired a servitude of way by prescription over the pursuers' land for cart traffic
  2. 2 Whether the servitude, if acquired, is limited to agricultural and market garden purposes or extends to all purposes including building traffic

Ratio Decidendi

The Court held that the defender had acquired by prescription a servitude of way for carts over the pursuers' land, and that such servitude is not limited to agricultural or market garden purposes but extends to all purposes connected with the enjoyment of the dominant tenement, including the carting of building materials for construction.

Court Disposition

Appeal sustained; interlocutor of Sheriff-Substitute recalled; defender assoilzied from conclusions of the action.

Orders

  • The defender is entitled to a servitude road for the passage of carts for all traffic, including the carting of building material to his lands.
  • Declarator and interdict craved by the pursuers refused.