Peart & Anor v. Legge [2006] ScotSC 90 (08 November 2006)

Peart & Anor v. Legge [2006] ScotSC 90 (08 November 2006)

The right of access in question, although a servitude by express grant, was not intended to be exercised until an opening in the wall was made. Following Smith & Others v Stewart, such a right is a res merae facultatis and is not subject to negative prescription. The Sheriff's decision to dismiss the pursuers' claim was correct.

Citation
[2006] ScotSC 90
Parties
Pursuers and Appellants: Barry Peart and Susan Anne Peart; Defender and Respondent: Symon B Legge
Jurisdiction
Scotland
Judgment Date
08 November 2006
Procedural Posture
Appeal (sheriff Court) / Judgment on Appeal
Outcome
Appeal refused; Sheriff's interlocutor adhered to.
Legal Topics
Servitude Rights, Prescription and Limitation, Res Merae Facultatis, Declarator, Interdict
Property Law Civil Procedure Servitude Rights Prescription and Limitation Res Merae Facultatis Declarator Interdict

Case Brief

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Parties

Barry Peart and Susan Anne Peart

Pursuers and Appellants

Symon B Legge

Defender and Respondent

Procedural Posture

Appeal (sheriff Court) / Judgment on Appeal

Legal Issues

  1. 1 Whether the right of access granted in the 1981 Disposition has prescribed under Section 8 of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the right is a servitude subject to negative prescription or a res merae facultatis and thus imprescriptible

Ratio Decidendi

The right of access in question, although a servitude by express grant, was not intended to be exercised until an opening in the wall was made. Following Smith & Others v Stewart, such a right is a res merae facultatis and is not subject to negative prescription. The Sheriff's decision to dismiss the pursuers' claim was correct.

Court Disposition

Appeal refused; Sheriff's interlocutor adhered to.

Orders

  • Pursuers and appellants found liable to the defender and respondent in the expenses of the appeal, remitted to the Auditor of Court to tax and report.
  • Cause certified as suitable for the employment of junior counsel for the purposes of the appeal.