Boyd v. Hamilton [1907] ScotLR 705 (25 May 1907)

Boyd v. Hamilton [1907] ScotLR 705 (25 May 1907)

The pursuer acquired a servitude right of access by the lane as an implied term of the feu-contract, established by the terms of the contract, the necessity for such access to comply with contractual obligations, the superior's approval of building plans making alternative access impracticable, and the long-standing, uninterrupted use of the lane with the superior's knowledge.

Citation
[1907] ScotLR 705
Parties
Pursuer: Mrs Jane Haddow or Boyd; Defender: Henry Montgomery M'Neill Hamilton of Raploch and Broomhill; Defender: John Hamilton
Jurisdiction
Scotland
Judgment Date
25 May 1907
Procedural Posture
Civil / Final Judgment After Proof and Reclaiming Motion
Outcome
decree for the pursuer
Legal Topics
Servitude, Implied Grant, Feu Contract, Access Rights, Interpretation of Title Deeds
Property Law Servitude Implied Grant Feu Contract Access Rights Interpretation of Title Deeds

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Parties

Mrs Jane Haddow or Boyd

Pursuer

Henry Montgomery M'Neill Hamilton of Raploch and Broomhill

Defender

John Hamilton

Defender

Procedural Posture

Civil / Final Judgment After Proof and Reclaiming Motion

Legal Issues

  1. 1 Whether the pursuer has a servitude right of access by the lane under the feu-contract
  2. 2 Whether such a right can be implied from the terms of the feu-contract and surrounding circumstances

Ratio Decidendi

The pursuer acquired a servitude right of access by the lane as an implied term of the feu-contract, established by the terms of the contract, the necessity for such access to comply with contractual obligations, the superior's approval of building plans making alternative access impracticable, and the long-standing, uninterrupted use of the lane with the superior's knowledge.

Court Disposition

decree for the pursuer

Orders

  • Declare that the pursuer has a right of access between the south-east-by-east boundary of her feu and Raploch Street by means of the specified lane.
  • Declare that the pursuer and her tenants, servants, and dependants are entitled to free ish and entry by and full use and enjoyment of the lane as access.