MAJOR DOUGLAS SOULSBY AGAINST RICHARD JONES AND ANOTHER [2020] ScotCS CSOH_103 (17 December 2020)

MAJOR DOUGLAS SOULSBY AGAINST RICHARD JONES AND ANOTHER [2020] ScotCS CSOH_103 (17 December 2020)

The pursuer failed to establish acquisition of a servitude right of access by prescription, as access was tolerated and not exercised as of right. No servitude of necessity exists, as maintenance could be carried out from the common passageway. The defenders are not entitled to vary any servitude right, as none exists. The pursuer is not barred by mora, taciturnity and acquiescence, but the construction of the extension does not constitute a nuisance. The court declines to grant remedies requiring removal of the extension.

Citation
[2020] ScotCS CSOH_103
Parties
Pursuer: Major Douglas Bowring Soulsby; Defender: Richard James Jones; Defender: Kirsten Natalie Jones
Jurisdiction
Scotland
Judgment Date
17 December 2020
Procedural Posture
Civil Action for Declarator and Interdict / Judgment After Proof
Outcome
Action dismissed
Legal Topics
Servitude Rights, Prescription, Servitude of Necessity, Nuisance, Mora, Taciturnity and Acquiescence, Remedies for Obstruction of Access
Property Law Civil Procedure Servitude Rights Prescription Servitude of Necessity Nuisance Mora, Taciturnity and Acquiescence Remedies for Obstruction of Access

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Parties

Major Douglas Bowring Soulsby

Pursuer

Richard James Jones

Defender

Kirsten Natalie Jones

Defender

Procedural Posture

Civil Action for Declarator and Interdict / Judgment After Proof

Legal Issues

  1. 1 Whether pursuer has acquired a servitude right of access by prescription
  2. 2 Whether a servitude right of access exists by necessity
  3. 3 Whether defenders are entitled to vary any servitude right by construction of extension

Ratio Decidendi

The pursuer failed to establish acquisition of a servitude right of access by prescription, as access was tolerated and not exercised as of right. No servitude of necessity exists, as maintenance could be carried out from the common passageway. The defenders are not entitled to vary any servitude right, as none exists. The pursuer is not barred by mora, taciturnity and acquiescence, but the construction of the extension does not constitute a nuisance. The court declines to grant remedies requiring removal of the extension.

Court Disposition

Action dismissed