RUDDIMAN AGAINST IAIN HAWTHORNE AND OTHERS [2019] ScotCS CSOH_65 (15 August 2019)

RUDDIMAN AGAINST IAIN HAWTHORNE AND OTHERS [2019] ScotCS CSOH_65 (15 August 2019)

The pursuer's averments outline a stateable case that the defenders propose to use Site 1 and the servitude right of access as a 'bridge' to facilitate development of Site 2, which may constitute material excess of the grant of servitude. There is a reasonable apprehension of a wrong, and issues of fact and law require proof. The action is not irrelevant or lacking in specification; proof before answer is allowed.

Citation
[2019] ScotCS CSOH_65
Parties
Pursuer: Maren Ruddiman; First Defender: Iain Hawthorne; Second Defender: Second Defender; Third Defender: Third Defender; Fourth Defender: Fourth Defender; Fifth Defender: Fifth Defender
Jurisdiction
Scotland
Judgment Date
15 August 2019
Procedural Posture
Civil Action for Declarator and Interdict / Debate on Relevancy and Specification; Proof Before Answer Allowed
Outcome
Defenders' motion for dismissal refused; proof before answer allowed; expenses continued.
Legal Topics
Servitude Rights, Interdict, Declarator, Access to Land, Planning Permission
Property Law Civil Procedure Servitude Rights Interdict Declarator Access to Land Planning Permission

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Parties

Maren Ruddiman

Pursuer

Iain Hawthorne

First Defender

Second Defender

Second Defender

Third Defender

Third Defender

Fourth Defender

Fourth Defender

Fifth Defender

Fifth Defender

Procedural Posture

Civil Action for Declarator and Interdict / Debate on Relevancy and Specification; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether the servitude right of access over Bieldside House driveway extends to Site 2
  2. 2 Whether defenders' intended use constitutes material excess of servitude
  3. 3 Whether pursuer has reasonable apprehension of a wrong justifying interdict

Ratio Decidendi

The pursuer's averments outline a stateable case that the defenders propose to use Site 1 and the servitude right of access as a 'bridge' to facilitate development of Site 2, which may constitute material excess of the grant of servitude. There is a reasonable apprehension of a wrong, and issues of fact and law require proof. The action is not irrelevant or lacking in specification; proof before answer is allowed.

Court Disposition

Defenders' motion for dismissal refused; proof before answer allowed; expenses continued.

Orders

  • Proof before answer allowed, all pleas standing.
  • Expenses continued.