Moncrieff and another (Respondents) v. Jamieson and others (Appellants) (Scotland), (2007)

House of Lords

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Moncrieff and another (Respondents) v. Jamieson and others (Appellants) (Scotland), (2007)

HOUSE OF LORDS

SESSION 2006-07

[2007] UKHL 42

on appeal from:

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Moncrieff and another (Respondents)

v.

Jamieson and others (Appellants) (Scotland)

Appellate Committee

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Mance

Lord Neuberger of Abbotsbury

Counsel

Appellants:

Andrew Hajducki QC

Gordon Junor

(Instructed by Anderson & Goodlad)

Respondents:

Iain Mitchell QC

Nicholas Holroyd

(Instructed by Inksters)

Hearing dates:

11 and 12 July 2007

ON

WEDNESDAY 17 OCTOBER 2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Moncrieff and another (Respondents) v. Jamieson and others (Appellants) (Scotland)

[2007] UKHL 42

LORD HOPE OF CRAIGHEAD

My Lords,

1.  The pursuers are husband and wife and live with their three children in subjects known as "Da Store", Sandsound, Shetland, of which they are the heritable proprietors. At the time when these proceedings began the first defender was the heritable proprietor of a nearby dwellinghouse known as "The Storehouse" where he lived with his wife, who is the second defender. The third defender is the father of the first defender. He is the heritable proprietor of lands surrounding The Storehouse lying between Da Store and the Sandsound public road. Da Store is bounded on the west by an arm of the sea known as Sandsound Voe and on its east and south sides by lands owned by the third defender. It is bounded on the north side by lands which are in separate ownership.

2.  Da Store previously formed part of the lands now owned by the third defender. It was separated from those lands by a disposition by Mitchell George Alexander Georgeson in favour of Mrs Margaret Stuart which was recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland on 3 September 1973. The situation of "Da Store" is such that it has no direct access to the system of public roads that serves the community in that part of Shetland. So among the rights conveyed by the disposition, to be enjoyed together with the lands on which the subjects are situated, was the following: "(Fourth) a right of access from the branch public road through Sandsound." The branch public road is the road referred to as the Sandsound public road in the previous paragraph.

3.  Da Store lies at the foot of a steep escarpment close to its boundary with the lands owned by the third defender. The buildings are situated between the foot of the escarpment and the foreshore. They are not accessible from the lands which lie to the north side of the property. They are accessible from the lands belonging to the third defender on the east side. But this is possible on foot only, by means of a gate and a stairway. Vehicles cannot be driven onto any part of the land on which Da Store is situated. It is common ground that the effect of clause (Fourth) was to confer a servitude right of access to "Da Store" from the Sandsound public road for both pedestrian and vehicular traffic. It is also common ground that accessory to the right of vehicular access is a right to stop vehicles on the servient tenement in order to turn, load and unload goods from them and set down and pick up passengers: contrast Baird v Ross (1836) 14 S 528, in which it was held that the dominant proprietor was not entitled to load or unload or turn carts unless he could do so on the cart way. The dispute which has given rise to this litigation is whether there is also an accessory right to park vehicles on the servient tenement.

4.  It should be noted that there has recently been a significant change in the situation on the ground. The Storehouse has been sold and the first and second defenders have left the subjects which are now occupied by the new proprietors. They have indicated that they wish to take no part in these proceedings and that they will abide by whatever decision is reached by your Lordships. But, subject to a small adjustment to the boundaries surrounding The Storehouse, the third defender retains his ownership of the servient tenement.

The proceedings

5.  The pursuers raised their action in the sheriff court at Lerwick on 15 September 1998. On 7 July 2003 after many callings, 10 days of evidence and 4 days of submissions by counsel, and after having visited the site himself, Sheriff Scott Mackenzie pronounced an interlocutor in which, among other things, he granted declarator that the pursuers were entitled to park vehicles on the servient tenement in the exercise of rights accessory to the servitude right of access. He also pronounced permanent interdict against the defenders from interfering with the reasonable exercise by the pursuers of their servitude right of access and the accessory rights.

6.  The defenders a...

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