Moncrieff and another v Jamieson and others

Right of way – Express grant permitting pedestrian and vehicular access to respondents’ land across appellants’ land – Parking not possible on respondents’ land – Whether right to park on servient land ancillary to right of way – Whether reasonably necessary for comfortable enjoyment of right of way – Judgment for respondents – Appeal dismissed The respondents owned a property adjoining the third appellant’s land and situated a short distance from a property owned by the first and second appellants. The respondents’ land had no direct access to the public road system. They therefore relied upon a right of way over the third appellant’s land, which was contained in a 1973 transfer by which the then owner of both properties had disposed of the respondents’ land. It was common ground that the right included both pedestrian and vehicular traffic and the ancillary right to stop vehicles on the servient tenement for turning purposes, for the loading and unloading of goods and the picking up and setting down of passengers. The respondents claimed that the right of way also included a right to park vehicles on the servient tenement. It was not physically possible to bring vehicles onto the respondents’ property because it was located between the foot of an escarpment and the foreshore and was accessible only by boat or on foot by way of a gate and steps.In the Scottish courts below, it was held that the right of way did include an ancillary right to park on the servient tenement. On appeal to the House, the issues were: (i) whether a right to park was ever capable of existing ancillary to a servitude of vehicular access; and (ii) if so, whether such a right existed in the particular circumstances of the case.Held: The appeal was dismissed. There was no fundamental objection in principle to the right that the respondents sought to establish. The essence of a servitude was that it existed for the reasonable and comfortable enjoyment of the dominant tenement. Practical considerations might indicate that it should carry with it other rights that, although they would not qualify as servitudes on their own, were necessary if the dominant owners were to make reasonable and comfortable use of their property. The right to turn and to load and unload vehicles fell within that principle. Although the express grant in the 1973 transfer fell to be construed in the circumstances existing in 1973, it was not necessary to show that all the rights claimed for the comfortable use and enjoyment of the servitude had actually been in use at that date.In the instant case, it was not possible to park a vehicle on the dominant tenement. If there were no right to park on the servient tenement, ancillary to the right of way, the owners of the dominant tenement would be required to deposit any goods or passengers, leave the servient tenement in order to park elsewhere, walk back from their parking place to their property and back again when they next wanted to use their vehicle. That would entail a walk of 150 yards, in all weathers and at any time of the day, involving a steep descent or climb in exposed countryside. In the particular and unusual circumstances of the case, a right to park on the servient land was reasonably necessary to the comfortable enjoyment of the expressly granted vehicular right of way, and was included within the rights ancillary to the express grant. Parking pursuant to that right should primarily be on the area of the third appellant’s land that the parties had already agreed would be suitable for the purpose; that did not necessarily bar the third appellant from parking there from time to time, nor did it bar the respondents, if there were no space in the agreed area, from parking elsewhere on the servient land in the vicinity of the gate leading to their property.That would not place an unacceptable burden upon the servient tenement, nor would it deprive its owners of any reasonable use of the land in question. It was unlikely that a large number of vehicles would be parked, given that the right was in favour only of the owners of the dominant tenement and their guests and visitors, and did not extend beyond what was reasonable for the purposes of their ownership of the dominant tenement.Andrew Hajducki QC and Gordon Junor (instructed by Anderson & Goodlad, of Lerwick) appeared for the appellants; Iain Mitchell QC and Nicholas Holroyd (instructed by Inksters, of Glasgow) appeared for the respondents.Sally Dobson, barrister