COLIN HELPBURN GREIG v. SHAUN NORMAN SKENE MIDDLETON & LAURA MIDDLETON [2009] ScotSC 91 (01 April 2009)

COLIN HELPBURN GREIG v. SHAUN NORMAN SKENE MIDDLETON & LAURA MIDDLETON [2009] ScotSC 91 (01 April 2009)

No servitude right of pedestrian access was created by prescription because the use of Ashdene's garden by the owner of Ardsheiling was tolerated due to family ties, not exercised as of right. The evidence did not show unequivocal, open, and notorious assertion of a right sufficient to meet the objective test for prescriptive acquisition of a servitude. Family arrangements provided a sufficient explanation for the use, and the pursuer failed to discharge the burden of proof.

Citation
[2009] ScotSC 91
Parties
Pursuer: Colin Hepburn Greig; Pursuer (represented by Colin Hepburn Greig as Guardian): Neil David Greig; Defender: Shaun Norman Skene Middleton; Defender: Laura Middleton
Jurisdiction
Scotland
Judgment Date
01 April 2009
Procedural Posture
Civil Action (declarator of Servitude Right of Access) / Judgment After Proof (trial)
Outcome
Pursuer's craves refused; defenders assoilzied (absolvitor granted)
Legal Topics
Servitude Rights, Prescription, Heritable Property, Family Arrangements and Property, Access Rights
Property Law Scots Law Servitude Rights Prescription Heritable Property Family Arrangements and Property Access Rights

Case Brief

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Parties

Colin Hepburn Greig

Pursuer

Neil David Greig

Pursuer (represented by Colin Hepburn Greig as Guardian)

Shaun Norman Skene Middleton

Defender

Laura Middleton

Defender

Procedural Posture

Civil Action (declarator of Servitude Right of Access) / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether a servitude right of pedestrian access from Ardsheiling to Links Road over Ashdene has been acquired by prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether any such use was as of right or merely tolerated due to family relationship

Ratio Decidendi

No servitude right of pedestrian access was created by prescription because the use of Ashdene's garden by the owner of Ardsheiling was tolerated due to family ties, not exercised as of right. The evidence did not show unequivocal, open, and notorious assertion of a right sufficient to meet the objective test for prescriptive acquisition of a servitude. Family arrangements provided a sufficient explanation for the use, and the pursuer failed to discharge the burden of proof.

Court Disposition

Pursuer's craves refused; defenders assoilzied (absolvitor granted)

Orders

  • Repels the pursuer's second plea-in-law
  • Sustains the defenders' second plea-in-law