ROBERT OSCAR SIDEBOTTOM AND SUSAN IRENE SIDEBOTTOM AGAINST MR JAMES JONATHAN GREEN AND MRS PAMELA HELEN GREEN AND SIR GEORGE IAN DAVID FORBES-LEITH [2014] ScotSC 37 (02 June 2014)

ROBERT OSCAR SIDEBOTTOM AND SUSAN IRENE SIDEBOTTOM AGAINST MR JAMES JONATHAN GREEN AND MRS PAMELA HELEN GREEN AND SIR GEORGE IAN DAVID FORBES-LEITH [2014] ScotSC 37 (02 June 2014)

The pursuers established, by credible and reliable evidence, that they had used the access route for over twenty years openly, peaceably, and as of right, thus acquiring a servitude right of access by prescription under section 3(2) of the Prescription and Limitation (Scotland) Act 1973. The defenders' evidence was not sufficient to displace the pursuers' case.

Citation
[2014] ScotSC 37
Parties
Pursuers: Robert Oscar Sidebottom and Susan Irene Sidebottom; First Defenders: James Jonathan Green and Pamela Helen Green; Second Defender: Sir George Ian David Forbes-Leith
Jurisdiction
Scotland
Judgment Date
02 June 2014
Procedural Posture
Civil Property/servitude / Judgment After Proof (trial)
Outcome
Declarator granted in favour of the pursuers; servitude right of access established.
Legal Topics
Servitude Rights of Access, Prescription, Acquisition of Rights by Use, Easements, Scottish Property Law
Property Law Civil Procedure Servitude Rights of Access Prescription Acquisition of Rights by Use Easements Scottish Property Law

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Parties

Robert Oscar Sidebottom and Susan Irene Sidebottom

Pursuers

James Jonathan Green and Pamela Helen Green

First Defenders

Sir George Ian David Forbes-Leith

Second Defender

Procedural Posture

Civil Property/servitude / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether the pursuers have acquired a servitude right of access over the defenders' property by prescription under section 3(2) of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the use was open, peaceable, continuous, and as of right for at least 20 years

Ratio Decidendi

The pursuers established, by credible and reliable evidence, that they had used the access route for over twenty years openly, peaceably, and as of right, thus acquiring a servitude right of access by prescription under section 3(2) of the Prescription and Limitation (Scotland) Act 1973. The defenders' evidence was not sufficient to displace the pursuers' case.

Court Disposition

Declarator granted in favour of the pursuers; servitude right of access established.

Orders

  • Repels the first defenders’ pleas in law so far as not already repelled.
  • Sustains the pursuers’ first plea in law.