Jarvis & Anor v Paine & Anor [2013] ScotCS CSIH_110 (12 December 2013)

Jarvis & Anor v Paine & Anor [2013] ScotCS CSIH_110 (12 December 2013)

The second respondent, as tenant, has sufficient title and interest to defend the petition. Certain averments previously excluded from probation should be restored, specifically those relating to lack of alternative routes, the conversation with Mrs Livingstone, and non-use of other access, but references to 'tradition' and map evidence remain excluded. Prior use of a public right of way does not in law automatically create a private servitude right of access; the normal requirements for servitude must be met.

Citation
[2013] ScotCS CSIH_110
Parties
Petitioner and Respondent: Niall Jervis Coll Livingstone of Bachuil; Respondent and Reclaimer: Yorick Paine; Respondent and Reclaimer: Sarah Campbell
Jurisdiction
Scotland
Judgment Date
12 December 2013
Procedural Posture
Petition for Interdict / Appeal (reclaiming Motion) Against Interlocutor on Relevancy and Specification, and Exclusion of Averments From Probation
Outcome
Interlocutor of Lord Ordinary recalled in part; certain averments restored to probation; second respondent's answers not repelled; award of expenses against second respondent recalled; case remitted for proof before answer; expenses of reclaiming motion continued.
Legal Topics
Servitude Rights of Access, Public Right of Way, Interdict, Title and Interest to Sue or Defend, Probation of Averments
Property Law Civil Procedure Servitude Rights of Access Public Right of Way Interdict Title and Interest to Sue or Defend Probation of Averments

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Parties

Niall Jervis Coll Livingstone of Bachuil

Petitioner and Respondent

Yorick Paine

Respondent and Reclaimer

Sarah Campbell

Respondent and Reclaimer

Procedural Posture

Petition for Interdict / Appeal (reclaiming Motion) Against Interlocutor on Relevancy and Specification, and Exclusion of Averments From Probation

Legal Issues

  1. 1 Whether the tenant (second respondent) had title and interest to defend the petition for interdict
  2. 2 Whether certain averments regarding access, tradition, and maps should be admitted to probation
  3. 3 Whether prior use of a public right of way can constitute a private servitude right of access

Ratio Decidendi

The second respondent, as tenant, has sufficient title and interest to defend the petition. Certain averments previously excluded from probation should be restored, specifically those relating to lack of alternative routes, the conversation with Mrs Livingstone, and non-use of other access, but references to 'tradition' and map evidence remain excluded. Prior use of a public right of way does not in law automatically create a private servitude right of access; the normal requirements for servitude must be met.

Court Disposition

Interlocutor of Lord Ordinary recalled in part; certain averments restored to probation; second respondent's answers not repelled; award of expenses against second respondent recalled; case remitted for proof before answer; expenses of reclaiming motion continued.

Orders

  • Recall interlocutor of 12 October 2012 insofar as it excluded specified averments from probation and repelled second respondent's answers.
  • Restore specified averments to the record for probation.