JOHN CLOY AND and MRS JANICE CLOY v. MESSRS T M ADAMS and THOMAS MURDOCH ADAMS and AGNES JANE ADAMS and COLIN ADAMS [1999] ScotSC 12 (28th April, 1999)

JOHN CLOY AND and MRS JANICE CLOY v. MESSRS T M ADAMS and THOMAS MURDOCH ADAMS and AGNES JANE ADAMS and COLIN ADAMS [1999] ScotSC 12 (28th April, 1999)

The sheriff was entitled to grant interim interdict where there was a prima facie case that continued exercise of the servitude right posed a serious risk of damage or injury; the exercise of a servitude right must be civiliter, and it is unreasonable to persist in a use that involves such risk; the sheriff's decision was correct given the evidence and the balance of convenience.

Citation
[1999] ScotSC 12
Parties
Pursuer/respondent: John Cloy; Pursuer/respondent: Mrs Janice Cloy; Defender/appellant: Messrs T M Adams & Sons; Defender/appellant: Thomas Murdoch Adams; Defender/appellant: Agnes Jane Adams; Defender/appellant: Colin Adams
Jurisdiction
Scotland
Procedural Posture
Civil Appeal / Appeal Against Interim Interdict
Outcome
appeal refused; sheriff's interlocutor affirmed
Legal Topics
Servitude Rights, Interdict, Nuisance, Balance of Convenience
Property Law Civil Procedure Servitude Rights Interdict Nuisance Balance of Convenience

Case Brief

Summary, issues, holding and outcome

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Parties

John Cloy

Pursuer/respondent

Mrs Janice Cloy

Pursuer/respondent

Messrs T M Adams & Sons

Defender/appellant

Thomas Murdoch Adams

Defender/appellant

Agnes Jane Adams

Defender/appellant

Colin Adams

Defender/appellant

Procedural Posture

Civil Appeal / Appeal Against Interim Interdict

Legal Issues

  1. 1 Whether interim interdict can be granted to prevent exercise of servitude right of vehicular access over a dam due to risk of serious damage or injury
  2. 2 Whether exercise of servitude right must be civiliter (reasonably and least burdensome)
  3. 3 Whether the law of nuisance applies to exercise of servitude rights

Ratio Decidendi

The sheriff was entitled to grant interim interdict where there was a prima facie case that continued exercise of the servitude right posed a serious risk of damage or injury; the exercise of a servitude right must be civiliter, and it is unreasonable to persist in a use that involves such risk; the sheriff's decision was correct given the evidence and the balance of convenience.

Court Disposition

appeal refused; sheriff's interlocutor affirmed

Orders

  • defenders/appellants liable to pursuers/respondents in expenses of the appeal
  • account of expenses to be lodged and taxed by Auditor of Court