Kerr v Brown [1938] ScotCS CSIH_2 (07 December 1938)

Kerr v Brown [1938] ScotCS CSIH_2 (07 December 1938)

The pursuer failed to establish a prescriptive right to discharge all sewage, including closet sewage, through the defenders' land because the use for closet sewage was not continuous, overt, or as of right for the prescriptive period. The installation of the fireclay drain in 1905 was an unlawful extension and not a mere substitution of any existing right. The extent of any prescriptive right is limited to the actual use proved, which was for waste water only, not for all sewage.

Citation
[1938] ScotCS CSIH_2
Parties
Pursuer: Kerr; Defender: Brown
Jurisdiction
Scotland
Judgment Date
07 December 1938
Procedural Posture
Civil Appeal / Appeal From Sheriff and Sheriff Substitute to Court of Session (inner House)
Outcome
appeal refused
Legal Topics
Prescriptive Servitude, Right of Sewage Passage, Extent of Servitude Rights, Acquisition by Prescription, Burden on Servient Tenement
Property Law Servitudes Scots Law Prescriptive Servitude Right of Sewage Passage Extent of Servitude Rights Acquisition by Prescription Burden on Servient Tenement

Case Brief

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Parties

Kerr

Pursuer

Brown

Defender

Procedural Posture

Civil Appeal / Appeal From Sheriff and Sheriff Substitute to Court of Session (inner House)

Legal Issues

  1. 1 Whether the pursuer has acquired by prescription a servitude right to carry all sewage, including closet sewage, through the defenders' land via an existing drain.
  2. 2 Whether the installation of a new fireclay drain in 1905 constituted a lawful continuation or an unlawful extension of any prescriptive right.
  3. 3 Whether the use of the drain for closet sewage was overt, continuous, and as of right for the prescriptive period.

Ratio Decidendi

The pursuer failed to establish a prescriptive right to discharge all sewage, including closet sewage, through the defenders' land because the use for closet sewage was not continuous, overt, or as of right for the prescriptive period. The installation of the fireclay drain in 1905 was an unlawful extension and not a mere substitution of any existing right. The extent of any prescriptive right is limited to the actual use proved, which was for waste water only, not for all sewage.

Court Disposition

appeal refused

Orders

  • Appeal refused; judgment of the Sheriff and Sheriff-substitute affirmed.