Euan MacKenzie Jarvie and another against Elaine Seawright or Armstrong (Sheriff Court Civil) [2026] SCSEL 8 (23 December 2025)

Euan MacKenzie Jarvie and another against Elaine Seawright or Armstrong (Sheriff Court Civil) [2026] SCSEL 8 (23 December 2025)

No implied servitude right of access arose in favour of the pursuers over the defender's property because (1) the intentions of the parties at the time of the 2012 disposition were not to create such a right, (2) access over the disputed ground was not necessary for the comfortable enjoyment of the 1942 land as alternative access existed, and (3) the only use prior to severance was for grass cutting and walking, which could be achieved by other means.

Citation
[2026] SCSEL 8
Parties
Pursuer: Euan MacKenzie Jarvie; Pursuer: Samantha Ray Jarvie; Defender: Elaine Seawright or Armstrong
Jurisdiction
Scotland
Judgment Date
23 December 2025
Procedural Posture
Civil / Judgment After Proof Before Answer
Outcome
Decree of absolvitor in favour of the defender; pursuers' case dismissed.
Legal Topics
Servitudes, Implied Rights of Access, Land Registration, Real Rights, Conveyancing
Property Law Servitudes Implied Rights of Access Land Registration Real Rights Conveyancing

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Parties

Euan MacKenzie Jarvie

Pursuer

Samantha Ray Jarvie

Pursuer

Elaine Seawright or Armstrong

Defender

Procedural Posture

Civil / Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether the pursuers have an implied servitude right of access over the defender's property for the benefit of their own property (the 1942 land)

Ratio Decidendi

No implied servitude right of access arose in favour of the pursuers over the defender's property because (1) the intentions of the parties at the time of the 2012 disposition were not to create such a right, (2) access over the disputed ground was not necessary for the comfortable enjoyment of the 1942 land as alternative access existed, and (3) the only use prior to severance was for grass cutting and walking, which could be achieved by other means.

Court Disposition

Decree of absolvitor in favour of the defender; pursuers' case dismissed.

Orders

  • Pursuers found liable to the defender in the expenses of the cause.
  • Account of expenses to be given in and remitted to the Auditor of Court to tax and report.