Moncrieff & Anor v. Jamieson & Ors [2005] ScotCS CSIH_14 (04 February 2005)

Moncrieff & Anor v. Jamieson & Ors [2005] ScotCS CSIH_14 (04 February 2005)

Given the unique physical circumstances of the dominant tenement and the access route, the servitude right of access includes, by implication, ancillary rights to park vehicles as reasonably incidental to the enjoyment of the dominant tenement. The right to park is limited to vehicles intended and able to exercise egress, and does not extend to storage. Acquiescence and parties' actings in this case do not constitute a real servitude right of parking.

Citation
[2005] ScotCS CSIH_14
Parties
Pursuers and Respondents: James Moncrieff and Another; Defenders and Appellants: Keith Jamieson and Others
Jurisdiction
Scotland
Judgment Date
04 February 2005
Procedural Posture
Appeal / Final Appellate Judgment
Outcome
Sheriff's interlocutor recalled in part; declarator granted for servitude right of access with ancillary parking rights; interdict granted against interference; other craves refused.
Legal Topics
Servitude Right of Access, Ancillary Rights, Parking as Incident of Access, Strict Construction of Servitudes, Acquiescence
Property Law Real Estate Servitudes Servitude Right of Access Ancillary Rights Parking as Incident of Access Strict Construction of Servitudes Acquiescence

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 3 Authorities cited 12 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

James Moncrieff and Another

Pursuers and Respondents

Keith Jamieson and Others

Defenders and Appellants

Procedural Posture

Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether a servitude right of access includes an ancillary right to park vehicles on the servient tenement
  2. 2 Whether parties' actings and acquiescence can enlarge the scope of servitude rights to include parking

Ratio Decidendi

Given the unique physical circumstances of the dominant tenement and the access route, the servitude right of access includes, by implication, ancillary rights to park vehicles as reasonably incidental to the enjoyment of the dominant tenement. The right to park is limited to vehicles intended and able to exercise egress, and does not extend to storage. Acquiescence and parties' actings in this case do not constitute a real servitude right of parking.

Court Disposition

Sheriff's interlocutor recalled in part; declarator granted for servitude right of access with ancillary parking rights; interdict granted against interference; other craves refused.

Orders

  • Declarator of servitude right of access and ancillary rights to park, turn, load, unload, set down and pick up passengers on servient tenement.
  • Interdict against defenders interfering with reasonable exercise of servitude and ancillary rights by parking, depositing vehicles, erecting fences or otherwise blocking access.