Case Report: (1884) 11 R 653

Key points: Acquisition of servitude right of way – route initially used by tolerance of proprietor – later established by prescriptive use – limits to validity of initial understanding between original owners.

The facts: An access road led from a public road to a house belonging to Rome; it continued past his house and crossed the boundary of his ground to reach a farm called Newfield, a short distance into the neighbouring estate. The owners of Newfield used the access road for getting to their farm from the public road, there being no other access to Newfield. Rome maintained that the use of the access road by the Newfield proprietors depended on permission given by his predecessors and might be recalled at any time. Some evidence indicated that this permission might have been given in the early 1800s, some 80 years previously. In the intervening period, both properties had changed hands. Rome sought Interdict against the Newfield proprietors using the access road.

Decision: The Court observed that the access arrangement might have been temporary at first, but, having passed through several generations, it might be too late to revert to the details of its commencement, though no firm opinion was expressed on this point. The Court refused the Interdict sought, and found that the Newfield proprietors had a right to use the access road for the following reasons: (1) the evidence showed that the access road, throughout its entire length from the public road to Newfield, had been constructed as one thoroughfare (i.e. at one time and as one piece of work); and (2) there was no other access to Newfield; the construction of the access road must therefore be regarded as having been a joint operation for the benefit of and at the expense of two neighbouring properties; its use by Newfield was to be ascribed to a contract between the respective proprietors to create a mutual servitude over their properties, and not to any temporary grant of consent.

Comments: The principal interest of this case as regards rights of way matters is the view that an access agreement, which was originally temporary, may, by the passage of time, continuous use and – more significantly – change of circumstances, become a permanent arrangement (c.f consideration in Allan v McLachlan of the validity of access arrangements once lands change hands). The use of the term ‘access agreement’ in this context is to be contrasted with the more specific modern use of the term.

Authority cited: Lord Stair, in ‘Institutions of the Law of Scotland’ (ii 7,10), on the subject of free access to and egress from property. This volume was published in 1681, when Lord Stair was Lord President of the Court of Session; it is regarded as marking the creation of Scots Law as known since that time.