Bowers & Anor v Kennedy [2000] ScotCS 178 (28 June 2000)

Bowers & Anor v Kennedy [2000] ScotCS 178 (28 June 2000)

Even if the express servitude right of access prescribed by non-use, the owner of the landlocked Knackery retains an implied right of access as an incident of ownership, which is imprescriptible. The pursuers' claim for interdict is irrelevant as the defender is entitled to access across Wynton Farm.

Citation
[2000] ScotCS 178
Parties
Pursuers and Appellants: Lewis Ronald Farmar Bowers and Another; Defender and Respondent: Andrew Kennedy
Jurisdiction
Scotland
Judgment Date
28 June 2000
Procedural Posture
Appeal / Appeal From Sheriff Court Decision
Outcome
appeal refused
Legal Topics
Servitude Rights, Prescription, Access to Landlocked Property, Implied Rights of Access
Property Law Scots Law Servitude Rights Prescription Access to Landlocked Property Implied Rights of Access

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Parties

Lewis Ronald Farmar Bowers and Another

Pursuers and Appellants

Andrew Kennedy

Defender and Respondent

Procedural Posture

Appeal / Appeal From Sheriff Court Decision

Legal Issues

  1. 1 Whether the servitude right of access to the Knackery over Wynton Farm prescribed by non-use for twenty years under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the owner of a landlocked enclave retains an implied right of access after extinction of an express servitude

Ratio Decidendi

Even if the express servitude right of access prescribed by non-use, the owner of the landlocked Knackery retains an implied right of access as an incident of ownership, which is imprescriptible. The pursuers' claim for interdict is irrelevant as the defender is entitled to access across Wynton Farm.

Court Disposition

appeal refused

Orders

  • Sheriff's dismissal of pursuers' action affirmed
  • All pleas in the counterclaim left standing