AC & IC Fraser & Son LTD (Sheriff Appeal Court Civil) [2024] SACCIV 41 (16 August 2024)

AC & IC Fraser & Son LTD (Sheriff Appeal Court Civil) [2024] SACCIV 41 (16 August 2024)

The court held that the facts did not meet the high threshold for variation of a servitude by acquiescence, as there was no evidence of substantial, irreversible works or clear implied agreement to vary the route. The use of the pedestrian access was by permission, not as of right, and thus could not establish a servitude by positive prescription. The sheriff erred in law in holding otherwise. The pursuer's appeal was allowed and the defender's appeal refused.

Citation
[2024] SACCIV 41
Parties
Pursuer, First Appellant and Respondent: AC & IC Fraser & Son Limited; Defender, Respondent and Second Appellant: Gordon Munro
Jurisdiction
Scotland
Judgment Date
16 August 2024
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
Pursuer's appeal allowed; defender's appeal refused.
Legal Topics
Servitudes, Prescription, Acquiescence, Variation of Servitude Route, Positive Prescription, Permission Vs. Adverse Possession
Property Law Real Rights Servitudes Prescription Acquiescence Variation of Servitude Route Positive Prescription Permission Vs. Adverse Possession

Case Brief

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Parties

AC & IC Fraser & Son Limited

Pursuer, First Appellant and Respondent

Gordon Munro

Defender, Respondent and Second Appellant

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the defender has a servitude right of access over a different route than that contained in the disposition
  2. 2 Whether permission for pedestrian access across the forecourt created a servitude right in favour of successors in title

Ratio Decidendi

The court held that the facts did not meet the high threshold for variation of a servitude by acquiescence, as there was no evidence of substantial, irreversible works or clear implied agreement to vary the route. The use of the pedestrian access was by permission, not as of right, and thus could not establish a servitude by positive prescription. The sheriff erred in law in holding otherwise. The pursuer's appeal was allowed and the defender's appeal refused.

Court Disposition

Pursuer's appeal allowed; defender's appeal refused.

Orders

  • Sheriff's decision overturned in respect of pedestrian access servitude; no variation of vehicular servitude route established by acquiescence; expenses reserved for further submissions; certification of senior counsel for appeal.