Carstairs v Spence [1924] ScotCS CSIH_1 (09 February 1924)

Carstairs v Spence [1924] ScotCS CSIH_1 (09 February 1924)

The appellant has acquired by prescription a general servitude right of access by cart over the respondents' land, not limited to agricultural or market garden purposes, but extending to all ordinary purposes connected with the enjoyment of the dominant tenement. The limitation imposed by the Sheriff-substitute is not supported by Scottish law or precedent.

Citation
[1924] ScotCS CSIH_1
Parties
Appellant/defender: Carstairs; Respondent/pursuer: Spence
Jurisdiction
Scotland
Judgment Date
09 February 1924
Procedural Posture
Civil Appeal / Appeal From Sheriff Substitute's Decision
Outcome
Appeal allowed; appellant assoilzied (absolved) from the conclusions of the action.
Legal Topics
Servitude, Prescription, Right of Way, Dominant and Servient Tenement, Extent of Servitude, Scottish Property Law
Property Law Servitude Prescription Right of Way Dominant and Servient Tenement Extent of Servitude Scottish Property Law

Case Brief

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Parties

Carstairs

Appellant/defender

Spence

Respondent/pursuer

Procedural Posture

Civil Appeal / Appeal From Sheriff Substitute's Decision

Legal Issues

  1. 1 Whether the appellant has acquired a prescriptive servitude right of way over the respondents' land
  2. 2 Whether any such right is limited to agricultural and market garden purposes or extends to general access including building purposes

Ratio Decidendi

The appellant has acquired by prescription a general servitude right of access by cart over the respondents' land, not limited to agricultural or market garden purposes, but extending to all ordinary purposes connected with the enjoyment of the dominant tenement. The limitation imposed by the Sheriff-substitute is not supported by Scottish law or precedent.

Court Disposition

Appeal allowed; appellant assoilzied (absolved) from the conclusions of the action.

Orders

  • Interlocutor appealed against recalled
  • Appellant assoilzied from general declarator and first conclusion for interdict