Mrs Isabella Paton Kerr Langskaill against Ms Tracy-Anne Black (Sheriff Court Civil) [2025] SCEDIN 009 (21 February 2025)

Mrs Isabella Paton Kerr Langskaill against Ms Tracy-Anne Black (Sheriff Court Civil) [2025] SCEDIN 009 (21 February 2025)

The defender, as heritable proprietor of 63MD, holds a heritable and irredeemable servitude right of access by the Lane to the back entrance of 63MD, which has not been extinguished by negative prescription. The 2011 Disposition is habile to include the Lane, and the pursuer has possessed the Lane since 1962, but is not entitled to interdict against the defender from entering or encroaching into the Lane or removing flora, given the servitude right of access.

Citation
[2025] SCEDIN 009
Parties
Pursuer: Mrs Isabella Paton Kerr Langskaill; Defender: Ms Tracy-Anne Black
Jurisdiction
Scotland
Judgment Date
21 February 2025
Procedural Posture
Civil / Final Judgment After Proof Before Answer
Outcome
Action dismissed in respect of interdict; declarator granted as to disposition and servitude right.
Legal Topics
Servitude Right of Access, Negative Prescription, Title to Sue, Interdict, Heritable Property
Property Law Servitude Prescription Servitude Right of Access Negative Prescription Title to Sue Interdict Heritable Property

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Parties

Mrs Isabella Paton Kerr Langskaill

Pursuer

Ms Tracy-Anne Black

Defender

Procedural Posture

Civil / Final Judgment After Proof Before Answer

Legal Issues

  1. 1 Is the 2011 Disposition habile to include the Lane for prescriptive possession?
  2. 2 Has the servitude right of access over the Lane in favour of 63MD been extinguished by negative prescription?
  3. 3 Is the pursuer entitled to interdict against the defender from entering or encroaching into the Lane or removing flora?

Ratio Decidendi

The defender, as heritable proprietor of 63MD, holds a heritable and irredeemable servitude right of access by the Lane to the back entrance of 63MD, which has not been extinguished by negative prescription. The 2011 Disposition is habile to include the Lane, and the pursuer has possessed the Lane since 1962, but is not entitled to interdict against the defender from entering or encroaching into the Lane or removing flora, given the servitude right of access.

Court Disposition

Action dismissed in respect of interdict; declarator granted as to disposition and servitude right.

Orders

  • Declarator that the 2011 Disposition is habile to include the Lane.
  • Declarator that the defender as heritable proprietor of 63MD has a heritable and irredeemable servitude right of access by the Lane to the back entrance of 63MD, not extinguished by negative prescription.