Garson & Anor v. McLeish & Anor [2009] ScotSC 49 (11 December 2009)

Garson & Anor v. McLeish & Anor [2009] ScotSC 49 (11 December 2009)

The defenders have a servitude right of pedestrian and vehicular access over the access road by prescription, but the right does not extend to widening the road or altering the verge, as the historical use did not include such works and the proposed works are not reasonably necessary to render the servitude effectual. The evidence did not establish regular use of the verge over the prescriptive period, and the justification for the works was to prevent damage to the verge rather than to enable access. Therefore, the defenders are interdicted from carrying out the proposed works.

Citation
[2009] ScotSC 49
Parties
First Pursuer: Dennis Garson; Second Pursuer: Kathleen Ann Johnston; First Defender: James Alexander McLeish; Second Defender: Mrs Betty Marion McLeish
Jurisdiction
Scotland
Judgment Date
11 December 2009
Procedural Posture
Civil (scottish Sheriff Court) / Final Judgment After Proof Before Answer
Outcome
Interdict granted against defenders from carrying out construction works to widen the access road; interim interdict recalled; hearing on expenses appointed.
Legal Topics
Servitude Right of Access, Prescription, Extent of Servitude Rights, Interdict, Planning Permission and Property Rights
Property Law Servitudes and Real Rights Servitude Right of Access Prescription Extent of Servitude Rights Interdict Planning Permission and Property Rights

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Parties

Dennis Garson

First Pursuer

Kathleen Ann Johnston

Second Pursuer

James Alexander McLeish

First Defender

Mrs Betty Marion McLeish

Second Defender

Procedural Posture

Civil (scottish Sheriff Court) / Final Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether the defenders have a servitude right of access over the access road on the pursuers' property
  2. 2 Whether the servitude right includes the right to widen the access road by altering the verge
  3. 3 Whether the defenders are entitled to carry out construction works to widen the road under the servitude right

Ratio Decidendi

The defenders have a servitude right of pedestrian and vehicular access over the access road by prescription, but the right does not extend to widening the road or altering the verge, as the historical use did not include such works and the proposed works are not reasonably necessary to render the servitude effectual. The evidence did not establish regular use of the verge over the prescriptive period, and the justification for the works was to prevent damage to the verge rather than to enable access. Therefore, the defenders are interdicted from carrying out the proposed works.

Court Disposition

Interdict granted against defenders from carrying out construction works to widen the access road; interim interdict recalled; hearing on expenses appointed.

Orders

  • Recalls the interim interdict granted on 1 August 2008.
  • Sustains the fourth and fifth pleas-in-law for the pursuers.