Metcalfe v. Purdon [1902] ScotLR 39_378 (31 January 1902)

Metcalfe v. Purdon [1902] ScotLR 39_378 (31 January 1902)

The pursuer failed because negative servitudes can only be constituted by express grant, not by implication, and in any event, the window in question was not necessary for the reasonable enjoyment of the property. There was no express grant, and the facts did not justify implication of such a servitude.

Citation
[1902] ScotLR 39_378
Parties
Pursuer/appellant: Arthur Metcalfe; Defender/respondent: James Purdon
Jurisdiction
Scotland
Judgment Date
31 January 1902
Procedural Posture
Civil / Appeal From Sheriff Court to Court of Session Inner House, First Division
Outcome
Appeal dismissed. Defender assoilzied (absolved) from the conclusions of the action.
Legal Topics
Servitude, Negative Servitude, Implied Grant, Light and Air, Long Lease, Servitude Between Tenants, Reasonable Enjoyment of Property
Property Law Servitude Negative Servitude Implied Grant Light and Air Long Lease Servitude Between Tenants Reasonable Enjoyment of Property

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Arthur Metcalfe

Pursuer/appellant

James Purdon

Defender/respondent

Procedural Posture

Civil / Appeal From Sheriff Court to Court of Session Inner House, First Division

Legal Issues

  1. 1 Whether a servitude of light and air can be implied between tenants under a long lease from a common author.
  2. 2 Whether a negative servitude can be constituted by implied grant in Scots law.
  3. 3 Whether the servitude claimed was necessary for the reasonable enjoyment of the property.

Ratio Decidendi

The pursuer failed because negative servitudes can only be constituted by express grant, not by implication, and in any event, the window in question was not necessary for the reasonable enjoyment of the property. There was no express grant, and the facts did not justify implication of such a servitude.

Court Disposition

Appeal dismissed. Defender assoilzied (absolved) from the conclusions of the action.

Orders

  • Affirmed interlocutors of the Sheriff-Substitute and Sheriff.
  • Dismissed the appeal.