RECLAIMING MOTION OF MAREN RUDDIMAN AGAINST IAIN HAWTHORNE AND OTHERS [2020] ScotCS CSIH_46 (11 August 2020)

RECLAIMING MOTION OF MAREN RUDDIMAN AGAINST IAIN HAWTHORNE AND OTHERS [2020] ScotCS CSIH_46 (11 August 2020)

The use of the driveway to access Site 1 as a means of facilitating access to Site 2 constitutes an excessive and unlawful use of the servitude right, as it increases the burden on the servient tenement and is not permitted under the established legal principles. The servitude cannot be used as a bridge to a non-dominant tenement.

Citation
[2020] ScotCS CSIH_46
Parties
Pursuer and Respondent: Maren Ann Murchie Ruddiman; Defenders and Reclaimers: Iain Colin Craig Hawthorne and others
Jurisdiction
Scotland
Judgment Date
11 August 2020
Procedural Posture
Reclaiming Motion (appeal) in Civil Action for Declarator and Interdict / Appeal Against Refusal to Dismiss Action at Procedure Roll; Decision on Whether Proof Before Answer Should Proceed
Outcome
Reclaiming motion refused; action to proceed to proof before answer.
Legal Topics
Servitude Rights of Access, Excessive Use of Servitude, Declarator, Interdict, Burden on Servient Tenement
Property Law Servitudes and Real Rights Servitude Rights of Access Excessive Use of Servitude Declarator Interdict Burden on Servient Tenement

Case Brief

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Parties

Maren Ann Murchie Ruddiman

Pursuer and Respondent

Iain Colin Craig Hawthorne and others

Defenders and Reclaimers

Procedural Posture

Reclaiming Motion (appeal) in Civil Action for Declarator and Interdict / Appeal Against Refusal to Dismiss Action at Procedure Roll; Decision on Whether Proof Before Answer Should Proceed

Legal Issues

  1. 1 Whether the defenders can use a servitude right of access over the pursuer's driveway to facilitate access to a non-dominant tenement (Site 2) via the dominant tenement (Site 1)
  2. 2 Whether the pursuer is entitled to declarator and interdict restricting use of the driveway to access to Site 1 only

Ratio Decidendi

The use of the driveway to access Site 1 as a means of facilitating access to Site 2 constitutes an excessive and unlawful use of the servitude right, as it increases the burden on the servient tenement and is not permitted under the established legal principles. The servitude cannot be used as a bridge to a non-dominant tenement.

Court Disposition

Reclaiming motion refused; action to proceed to proof before answer.

Orders

  • Refusal of reclaiming motion (appeal)
  • Case to proceed to proof before answer