Dalgleish or Willemse & Anor v French & Ors [2011] ScotCS CSOH_51 (18 March 2011)

Dalgleish or Willemse & Anor v French & Ors [2011] ScotCS CSOH_51 (18 March 2011)

The entry in the pursuers' title sheet did not confer a right of common property or common interest but did confer a servitude right of access by the route coloured yellow on the title plan. However, whether this right includes vehicular access and whether it has been extinguished by negative prescription or abandonment are matters requiring proof. The court cannot look behind the Land Register to prior titles for interpretation in this case.

Citation
[2011] ScotCS CSOH_51
Parties
Pursuer: Mrs Elin Kristina Dalgleish or Willemse; Pursuer: Robin Alexander Willemse; First Defender: Michael Craig French; First Defender: Mrs Jean Rachael French; Second Defender: Douglas Stewart; Second Defender: Mrs Janice Anne McNaughton Stewart; Third Defender: Mrs Sheila Henderson
Jurisdiction
Scotland
Judgment Date
18 March 2011
Procedural Posture
Civil Property/servitude / Procedure Roll Debate on Preliminary Pleas
Outcome
Pursuers' first plea in law repelled; third pleas in law for first and second defenders sustained; proof before answer allowed quoad ultra; all other pleas left standing; expenses reserved.
Legal Topics
Servitude Rights of Way, Interpretation of Land Register Title Sheets, Negative Prescription, Abandonment of Servitude, Common Property Vs Servitude, Rectification of Land Register
Property Law Land Registration Servitude Rights of Way Interpretation of Land Register Title Sheets Negative Prescription Abandonment of Servitude Common Property Vs Servitude Rectification of Land Register

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Parties

Mrs Elin Kristina Dalgleish or Willemse

Pursuer

Robin Alexander Willemse

Pursuer

Michael Craig French

First Defender

Mrs Jean Rachael French

First Defender

Douglas Stewart

Second Defender

Mrs Janice Anne McNaughton Stewart

Second Defender

Mrs Sheila Henderson

Third Defender

Procedural Posture

Civil Property/servitude / Procedure Roll Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether the pursuers acquired a right of common property or a servitude right of access over the access road by registration of their title
  2. 2 Whether the right includes vehicular access
  3. 3 Whether any servitude right of vehicular access has been extinguished by negative prescription or abandonment

Ratio Decidendi

The entry in the pursuers' title sheet did not confer a right of common property or common interest but did confer a servitude right of access by the route coloured yellow on the title plan. However, whether this right includes vehicular access and whether it has been extinguished by negative prescription or abandonment are matters requiring proof. The court cannot look behind the Land Register to prior titles for interpretation in this case.

Court Disposition

Pursuers' first plea in law repelled; third pleas in law for first and second defenders sustained; proof before answer allowed quoad ultra; all other pleas left standing; expenses reserved.

Orders

  • Repel pursuers' first plea in law
  • Sustain third plea in law for first defenders