Version classiqueVersion mobile

Essays in Conveyancing and Property Law

 | 
Frankie McCarthy
, 
James Chalmers
, 
Stephen Bogle

Enjoying Property

11. The Use of Praedial Servitudes to Benefit Land outside the Dominant Tenement

Roderick R M Paisley

Texte intégral

1Throughout my entire legal career I have had the pleasure of discussing property law with my good friend Robert Rennie. Having learned much in the process, I hope that I have contributed at least a little. Such discussions were of particular value where the issue was one upon which only brief comment was available in the published legal literature. One of the issues that cropped up in our conversations is the subject matter of this essay. We both recognised that it was a topic requiring some detailed research. Having now had the opportunity to carry out that research I have pleasure in dedicating this essay to Robert as a token of my esteem.

A. Introduction

  • 1 Irvine Knitters Ltd v North Ayrshire Cooperative Society Ltd 1978 SC 109. For material in the Nati (...)
  • 2 Praedial (otherwise predial) servitudes benefit a plot of land known as the dominant tenement or b (...)
  • 3 D J Cusine and R R M Paisley, Servitudes and Rights of Way (1998) paras 12.164-12.179. The other t (...)
  • 4 See e.g. the limited number of government backed projects where the Scottish Parliament disapplied (...)
  • 5 The legally implied servitude condition, being a negative in nature, cannot be varied or discharge (...)

2The rule now known to Scottish property lawyers as “the Irvine Knitters rule”1 limits the use of praedial servitude rights.2 It does so by linking exercise of the particular servitude to the purposes of the relevant dominant tenement (otherwise known as “the benefited property”). All other exercise is regarded as in excess of the proper use of the servitude and can be interdicted at the instance of the servient proprietor (otherwise known as “the burdened proprietor”). The rule may be classified as one of the three legally implied servitude conditions.3 The effect of the rule is that the dominant tenement is fixed in geographic extent at the time of creation of the particular servitude and, apart from very specific statutory exceptions that have no general relevance,4 does not expand to incorporate other land when the dominant proprietor acquires that other land even if that additional land is used together with the original dominant tenement to enable the carrying out of a single business or the construction of a single development project. What is required in such a situation of expansion is usually some variation of the existing servitude or the obtaining of a new, more expansive, servitude.5 The issue therefore comes into sharp focus where potential development sites are being assembled from various constituent parts.

  • 6 The Irvine Knitters Limited, Company Number SC026008, was incorporated on 31 December 1947 but is (...)
  • 7 It is described as “well known” in Hay v Hay or Robertson (1845) 17 Sc J 186 at 187 per the Lord O (...)
  • 8 D 8.3.29 (Paul); D 8.3.33 (Africanus).
  • 9 1809, 15 FC 397. The case is named as Bogle v Bogle in Hume, Lectures, vol 3 (Stair Society No 15) (...)
  • 10 (1862) 24 D 149. For material in the National Archives of Scotland, see reference RHP40965 contain (...)
  • 11 See e.g. Brown v Kinloch, 20 Dec 1775, M 14542, with a relevant plan in the National Archives of S (...)
  • 12 1991 SLT 64. For material in the National Archives of Scotland, see references CS258/1989/2650A an (...)
  • 13 1991 SLT 64 at 68. The law as stated in the latter part of the quotation is incorrect. The use of (...)

3Although now widely known by the name of the pursuers in the particular case, Irvine Knitters Ltd,6 and albeit the case was decided by the First Division of the Court of Session in 1978, the rule is long established,7 having its origins in the writings of various Roman jurists collected in the Digest of Justinian.8 It is clear the Scottish rule did not appear out of nowhere. The prior Scottish authorities cited by Lord President Emslie in Irvine Knitters comprise two Nineteenth Century cases, Scott v Bogle9 and Anstruther v Caird.10 Despite the existence of these earlier authorities there is no record of the rule being known in Scotland as the Scott or Anstruther rule. Other, even older, Scottish authorities illustrating the rule also exist but are not now cited in modern practice having been eclipsed by the decision in Irvine Knitters.11 The most recent Scottish restatement of the Irvine Knitters rule is found in Alvis v Harrison12 (a Scottish appeal to the House of Lords) in the opinion of Lord Jauncey. He stated:13

A servitude right of access inures to the benefit of the dominant tenement and no other. Thus it cannot be communicated for the benefit of other tenements contiguous thereto (Scott v Bogle). In Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd the Lord President ... said: “What they [the dominant proprietors] may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those others subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non dominant subjects.”… The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden.

  • 14 Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd 1978 SC 109 at 117 per Lord Presiden (...)
  • 15 See e.g. Giles v Tarry [2012] EWCA Civ 837 at para 41 per Lewison LJ; Peacock v Custins [2002] 1 W (...)

4Not only in Alvis v Harrison but also in Irvine Knitters14 has the substantial identity of English and Scots law on this point been emphasised. So too, in reported English cases, has Scottish authority been used to illustrate the application of the analogous common law principle.15 As a result, with their usual caution, Scottish lawyers may look to English law, and also to Common law jurisdictions based on English authorities, to ascertain the likely position of Scots law.

  • 16 As is demonstrated by the English case of Williams v James (1867) LR 2 CP 577.
  • 17 Magistrates of Dunbar v Sawers (1829) 7 S 672. For assorted relevant material in the National Arch (...)

5It should be noted that almost all the reported cases relate to servitudes of access. The rule equally applies to egress (i.e. coming out of a property).16 Moreover, it applies to all servitudes including servitudes involving transport of material extracted or abstracted from lands adjacent to the dominant tenement whether by means of a road or other service media. For example, in one Scottish case a party was not allowed to use a drain benefiting one field for another field owned by him nor to eject water from extra fields onto the original dominant tenement for onward drainage via the servitude of drain.17 One of the reasons for the concentration of cases on access may be that such activity is usually obvious and thus discoverable in comparison with the leading of a drain to additional property which may be underground and substantially obscured from view.

  • 18 In Magistrates of Dunbar v Sawers (1829) 7 S 672, the magistrates granted a servitude of drainage. (...)
  • 19 Giles v Tarry [2012] EWCA Civ 837.

6The Irvine Knitters rule relates to the dominant proprietor taking unfair advantage of a servitude to the disadvantage of the servient proprietor. The rule permits the servient proprietor to restrain the dominant proprietor from doing so and, as such, imposes a negative restraint on the latter. Although the quotation from Lord Jauncey, above, indicates the dominant proprietor must not “permit” third parties using the servitude to pass to lands outwith the dominant tenement, it is hard to see how this can apply in such a way. The rule does not impose any positive obligation on the dominant proprietor. For example, there is no implied obligation on the dominant proprietor to fence off the dominant tenement so that the taking of access into adjacent land from the dominant tenement is impossible. In Scotland such a positive obligation could be imposed by a real burden or possibly by a servitude condition. Such a provision is not unknown in practice18 but appears to be rare. In one modern English case19 it was observed that it is acceptable for a dominant proprietor, a farmer, to transport his sheep up an easement of access over the servient tenement onto the dominant tenement so that they might graze on the dominant tenement and, having grazed on that tenement, if the sheep spread out onto the adjacent land outwith the dominant tenement, the servient proprietor could have no objection. Although no time period as regards the sheep grazing on the dominant tenement was judicially specified, one would expect this observation would relate to a situation in which the sheep are allowed to move naturally as they graze. A different situation might arise if the dominant farmer used devices giving encouragement to the sheep to move quickly from the dominant tenement onto the adjacent land such as the storage on the adjacent land of particularly attractive food for the sheep. This sort of nutritional inducement to directed movement of the livestock may well be restricted by the negative restraint imposed by the Irvine Knitters rule. Difficult cases may arise if a shop has been built on a composite site comprising and extending beyond the dominant tenement in a servitude of access. It is undecided what sort of devices, presumably employed as part of what is now termed “the overall retail experience,” would be regarded as unacceptable inducements to the potential customers to move from the dominant tenement into the remainder of the shop.

B. Minerals Rights

  • 20 R Rennie, Minerals and the Law of Scotland (2001).

7The Scottish case law decided in relation to the Irvine Knitters rule invariably relates to the use of the surface of land on both the servient and dominant tenements. However, given Professor Rennie’s longstanding interest in minerals rights and areas below the surface of land,20 a brief comment on that particular matter is required.

  • 21 In this regard see the terms of the Tenements (Scotland) Act 2004 s 2 (7). It is unstated whether (...)
  • 22 See e.g. Duke of Hamilton v Graham (1871) 9 M (HL) 98; W Davidson v Duke of Hamilton and W Walker (...)

8Minerals rights are regarded in Scotland as capable of being conveyed as geographic separate tenements (i.e. slices of land) and there is no reason in principle why the Irvine Knitters rule should not apply to minerals rights just as it applies to slices of land such as storeys of property above first floor level, airspace above land21 or land at ground level. Some Scottish cases22 have been decided in which one of the parties has attempted to apply the Irvine Knitters rule so as to limit the other party’s activity (usually access) in what the first party believed was his own land. However, this body of Scottish case law relating to minerals has typically dodged the application of the Irvine Knitters rule by deciding that the rule did not apply because the area where the activity was carried out was also owned as a property right by the owner of the minerals. Put another way, it was decided that the area in question was not owned by the party objecting to the activity and was not subject only to a servitude in favour of the minerals proprietor. These cases relate to the proper construction of the wording employed in particular grants or reservations of minerals. They in no way suggest that the Irvine Knitters rule does not apply to servitudes benefiting minerals held as a property right.

  • 23 Dand v Kingscote (1840) 6 M & W 174, 151 ER 370; Durham and Sunderland Rail Co v Walker [1842] 2 Q (...)
  • 24 Hamilton v Graham (1871) 9 M (HL) 98. The rule in Irvine Knitters would also be inapplicable if th (...)

9Two early English cases confirm that the analogous English rule does indeed apply to such minerals held as property rights.23 Both of these cases were considered and distinguished in a Scottish case24 but only on the basis that the Scottish court was not dealing with a servitude benefiting a property right. It seems clear that the Irvine Knitters rule would be applied in a Scottish case to a servitude benefiting minerals held as a property right if the issue ever came up for decision in a pure and unavoidable form. That did occur in the two English cases just noticed. At that time the minerals working and processing appear to have been a relatively simple affair of the minerals being dug out by miners at a particular coal or mineral face in manageable amounts and immediately loaded into bogies. The material was then transported across the dominant tenement and onto the servient tenement. There was no issue of a manufacturing complex or any processing of the minerals within the dominant tenement. This is an issue that will be considered later in this essay.

C. Qualified Nature of the Rule

10Absolute though the rule in Irvine Knitters appears to be at first blush, further examination shows that this is not so nor is it applied in a wholly inflexible way. Common law jurisdictions such as England, certain Canadian Provinces and some Australian States have attempted to mitigate the rigours of their own native version of the Irvine Knitters rule by developing a number of judicially created qualifications to permit extension of an easement of access to benefit additional land in several situations. These are not yet fully worked out in reported Scottish case law but, in principle, they all appear compatible with Scots law. These will be set out below as the first and second exceptions. In addition, there are a couple of exceptions that are better established in “native” Scottish authority. These are set out below as the third and fourth exceptions.

11The qualifications permit the servitude to be used to benefit land outwith the dominant tenement where one or more of the following exceptions apply. In very brief summary they are:

  1. First exception – ancillary use.
  2. Second exception – anticipated additional land.
  3. Third exception – personal bar.
  4. Fourth exception – separate journeys.

12These will be examined in turn.

(1) The first exception

13This applies where the use of the additional land outside the dominant tenement is ancillary to a permissible use of the dominant tenement.

  • 25 The English cases comprise National Trust v White [1987] 1 WLR 907; Macepark (Wittlebury) Ltd v Sa (...)
  • 26 Blair v Strachan, 20 Jun 1889, Sheriff Guthrie Smith. See Aberdeen Weekly Journal, 25 Jun 1889. Th (...)
  • 27 The use of “was” in the quoted text follows from the odd Scottish conveyancing convention that reg (...)

14The main body of case law illustrating this exception relates to English easements of access.25 This indicates that access will be allowed to and from relatively small areas of land adjacent to the dominant tenement where access to such areas is required for the proper enjoyment of the dominant tenement. A similar notion of a servitude benefiting the dominant tenement being capable of facilitating access to an adjacent area of land where the use of that area is ancillary to the dominant tenement is seen in only one Scottish case.26 In that Scottish case a stable originally built on the dominant tenement had been redeveloped and a new stable serving the house on the dominant tenement had been built so that it was located on a small plot of land adjacent to the dominant tenement. In a decision that has never properly been reported, the Sheriff took the view:27

I am disposed to think that the subjects benefited in this case was [sic] still the same, the stable being really an adjunct to the dwellinghouse.

  • 28 There was further litigation on a matter of obstruction of the same servitude of access reported a (...)
  • 29 See the note of the terms of the interlocutor in that appeal at (1894) 31 SLR 548 at 549. There is (...)

15This case was appealed to the Court of Session and the Sheriff’s interlocutor reversed in part but the judgement is not reported.28 Albeit the records that remain are unclear, the Court of Session appears to have restricted the dominant proprietor’s access to his house only and to have excluded access to the stable.29 By reference to authority, therefore, one cannot therefore argue with any assurance that the “ancillary use” exception has been judicially recognised as part of Scots law.

  • 30 Massey v Boulden [2002] EWCA Civ 1634, [2003] 2 All ER 87.
  • 31 Martin Wilkins and Wendy Wilkins v Thomas William Lewis [2005] EWHC 1710 (Ch).
  • 32 As noted in Macepark (Wittlebury) Ltd v Sargeant [2003] 1 WLR 2284 by Gabriel Moss QC, who attempt (...)

16However, albeit seemingly rejected in this one Scottish case, there still appears to be room for development of the exception in cases with more suitable circumstances. What then might those circumstances be and how can one circumscribe them? Clearly this exception relating to “ancillary use” cannot be used to undermine the entire Irvine Knitters rule although it has been applied enthusiastically in some English cases. For example, in one case30 where an easement of way benefitted a cottage it was held the easement could be used even where the cottage was extended with two rooms on adjacent land not part of the dominant tenement. By contrast, in a case decided only two years later,31 it was held inadmissible to take access over an easement of way to some 800 acres of farm land outwith the dominant tenement which itself consisted of about 1,200 acres of agricultural land. Albeit some of the decisions are somewhat difficult to reconcile,32 for this exception to the Irvine Knitters rule to operate, it remains the case that there must be some element of the use of the adjoining land being “ancillary” to the use of the dominant tenement. Consequently, a dominant proprietor cannot take access to adjacent land of whatever extent and whatever the slimness of the connection with the proper use of the dominant tenement. Furthermore, the use of the adjacent land must be ancillary to some use of the dominant tenement that was not expressly excluded by the terms of the servitude itself. For example, where a servitude of access is granted to a plot of land expressly on the basis that it may be used as an access to a house but not as an access to a vehicle garage, the owner of the house on the dominant tenement cannot build a garage on the adjacent land and claim to take access to the garage over the servitude route on the basis that the use of the garage is ancillary to the house.

17A clear example of ancillary use as an exception to the Irvine Knitters rule that is recognised daily in Scotland is a servitude of access over a lane leading to a house on the dominant tenement that is also benefited by a servitude of drain and septic tank over a field in the ownership of a third party. If the owner of the house wishes to repair the drain and septic tank it is manifestly clear that he, together with his contractors and employees, may take access from the public road, up the servitude lane, across his own property and into the land of the third party located outside the dominant tenement in the access servitude. It does not matter at all that the servitude of drainage and septic tank is first acquired long after the creation of the servitude of access and was not clearly envisaged by the parties to that original servitude of access. So too, can the owner of a dominant tenement use a servitude of way to take access to his property and then proceed to leave his property by another servitude of way leading over an entirely different servient tenement. Both such examples of ancillary use, however, could be regarded as being in excess of the servitude of access if the terms of the grant or reservation of that servitude of access expressly prohibit such use. That, however, would not be a breach of the Irvine Knitters rule but a transgression of an express servitude condition restricting the purpose of the servitude.

18Another example would be where a person purchases a field with a servitude of access out to the public road along a private lane. The dominant field benefits from rights of lateral support, most likely in the form of servitudes or rights of common interest, owed to it by adjacent land in the ownership of third parties. The dominant proprietor may acquire rights of access to the adjacent land to carry out works to enhance that lateral support. The owner of the dominant tenement, together with his contractors and employees, may use the servitude of access and pass across his own property into the land of the third party to carry out the works to enhance lateral support. Again, this ancillary use could be excluded by express provision in the terms of the servitude of access.

  • 33 For this a servitude tigni inmittendi would be needed.

19So too, one may consider part of an underground tunnel used for passage based on a servitude of access where the next part of the same tunnel is also used for passage but this time based on a property right held by the person taking passage. The servitude of access over the first part of the tunnel may be regarded as benefiting, inter alia, the second part of the tunnel. It may happen that the owner of the second part of the tunnel may require to drive large pins into the roof and walls of that part of the tunnel to stop that roof and those walls falling in. Those pins will penetrate into the surrounding strata which are outside the dominant tenement and are owned by a third party.33 So too, if the pins are insufficient, may the owner of the second part of the tunnel require to excavate part of the surrounding rock outside the dominant tenement to stop the rock falling into the part of the tunnel comprising the dominant tenement. Additional rights from the third party may require to be obtained. In both of these cases, however, additional rights do not have to be acquired by the owner of the second part of the tunnel from the owner of the first part of the tunnel (the servient tenement) to enter or use the land of the latter. The owner of the second part of the tunnel may use the existing servitude of access over the first part of the tunnel to go into the dominant tenement and then enter the lands of the third party to carry out these works as they are ancillary to, and necessary for, the proper use of the dominant tenement comprising the second part of the tunnel.

20A further example may be seen where a servitude of access benefits a dominant tenement consisting of a quarry. If the quarry is dug out of the ground so that it forms an open basin, the quarry walls cannot safely be dug in such a way that would leave a cliff face existing at ninety degrees to the remaining surrounding surface of the land. Instead, for safety sake, the walls of the quarry must be stepped at an angle so that there is a reduced danger of collapse or rockfall. If the stepping takes place entirely within the dominant tenement so that the top of the stepping, which is at the level of the surface of the land, is located inside or on the very boundary line this will inevitably result in a measure of rock within the dominant tenement remaining unexploited. This could be avoided if the dominant proprietor stepped the sides of the quarry by digging out some of the minerals on the neighbouring land owned by a third party leaving the bottom of the stepping on the boundary line between the dominant tenement and the third party land. Of course, the dominant proprietor would require to obtain rights from the third party to encroach in this way into the neighbouring land. However, as regards the servitude of access into the quarry, the stepping of the sides of the quarry may be regarded as ancillary to the originally envisaged and proper use of the dominant tenement to the extent that such digging and stepping is required to extract all of the minerals from the dominant tenement.

21In all of the examples indicated above, the additional rights in the land adjacent to the dominant tenement may be obtained by means of a positive servitude benefiting the same dominant tenement served by the servitude of access. On one view, the very form of the additional rights as servitudes could be argued as fitting well with the “ancillary” use exception as a positive servitude, by definition, is ancillary to the relevant dominant tenement. The positive servitude over the adjacent land may exist only if it confers a benefit on the land which is also the dominant tenement in the servitude of access. However, it would be too much to suggest that the servient tenement in any positive servitude benefiting land which is also the dominant tenement in a servitude of access can be accessed by that servitude of access. Consider, for instance, a servitude of access benefiting a farm extending to 100 hectares. If the owner of the farm subsequently obtains a grant of a servitude of pasturage over 10,000 hectares of adjacent hill pasture benefiting the farm, it seems somewhat extravagant to suggest that he may use the existing servitude to take access to the extensive hill pasture. It seems likely that the “ancillary” use exception to the Irvine Knitters rule will be more tightly drawn but it is not at all clear upon what basis that will be done. Perhaps recourse could be had to an element of “reasonable foreseeability.” That, however, is to speculate far beyond any decided authority.

  • 34 The possibility of the implied grant of such ancillary rights was recognised in Moncrieff v Jamies (...)

22Lastly, one should notice that other doctrines may assist the law to overcome some of the conceptual limitations and uncertainties of the “ancillary” use exception to the Irvine Knitters rule. Where the owner of the servient tenement in a proposed route of passage grants a servitude of access to a 100 hectare farm which is then already benefited by a servitude of pasturage over the adjacent 10,000 hectares of hill grazing, the access in favour of the farm is clearly a positive servitude. The access to the hill grazing cannot be a servitude unless separately granted in favour of the owner of the hill grazing over which the servitude of pasturage is exercised. If constituted in this way the owner of the hill grazing can then communicate the benefit of enjoyment of his servitude of access to the dominant proprietor in the servitude of pasturage as the latter has a lawful right to be on the dominant tenement in that servitude. Such a method of creation, however, requires the co-operation of the owner of the hill grazing and he is entitled to refuse to accept the benefit of a servitude of access. Alternatively, the party owning the servient tenement in the proposed servitude of access to the farm may simultaneously grant two rights. First, a servitude of access to that farm and, secondly, a right of access which, although not a separate servitude in its own right, is a right ancillary to the servitude of pasturage over the hill grazing.34 There is no requirement, either at the time of grant of the ancillary access right or at any time thereafter, that the servient tenement in the servitude of pasturage must be owned by the same person who owns the land subject to the right of access ancillary to that servitude of pasturage. So too there is no requirement that the servient tenement in the servitude of pasturage and the land subject to the ancillary right of access be contiguous and not separated by the dominant tenement in the servitude of access. This double grant is useful in two situations. First, where the grant of access is made when the farm is already benefited by the servitude of hill grazing. Second, where the owner of the route in the proposed servitude of access is also the owner of the hill grazing.

(2) The second exception

  • 35 Express provision would expressly bring the additional land within the dominant tenement and thus (...)

23The second exception exists where, although there is no express provision to that effect,35 it is clear by reasonably implication from the terms of the deed or the surrounding circumstances that it was always intended by both parties to the servitude that the dominant tenement would be extended to incorporate the additional land or, at least, this possibility was contemplated and left open by both parties to the servitude when the servitude was created.

  • 36 See e.g. Thorpe v Brumfitt (1872-73) LR 8 Ch App 650; Callard v Beeney [1930] 1 KB 353.
  • 37 See e.g. Shean Pty Ltd v Owners of Corinne Court [2001] WASCA 311; Owners Corporation – Strata Pla (...)

24The authority for this rule is contained in a number of English36 and Australian cases.37 For example, if a servitude is expressly created in favour of the front door and entrance hall of a house, it is reasonable to accept that the servitude benefits the entire house as the front door and access hall are merely means of access to the house itself. Another example is where the deed itself defines as the dominant tenement “Plot A” but contemplates access to Plot B even though the definition of the dominant tenement does not expressly extend to it. Involved in this exception are elements of the function of the dominant tenement and the adjacent land. The exception could be regarded as relating to situations in which it is reasonably foreseeable that the dominant tenement, by design or natural topography, is to perform function ancillary to the adjacent land. It perhaps must perform a role benefiting the adjacent land similar to that performed by the servient tenement in relation to the dominant tenement. This seems to be the case in servitudes of access where the dominant tenement’s only function is as a route of access to the adjacent property. If such be the case, when one considers the benefit to the adjacent land, the dominant tenement in the servitude of access operates functionally as part of a servient tenement. If indeed that is so, the elements of this function or design must exist as at the date of the grant or reservation of the servitude of access so that they are reasonably evident to the parties to that juristic act. Years after the grant of a servitude of access the dominant proprietor cannot so design a house so that the sole means of entry is located on Plot A and the remainder of the property on Plot B.

25The argument is perhaps easiest to make where the servitude is one of drain or other service media. Consider the case where the servitude is phrased that a property owner is entitled to join a particular drain on his property into the main drain on the servient property and thereafter use it. It seems to be overly strict to argue that the dominant tenement is only the particular drain within the property owner’s land. It seems manifestly obvious that it would always have been intended that this particular drain should be connected to a house or other structure on the land to which it provides a benefit and that that house or structure would be comprised within the dominant tenement for the servitude of drainage. Again, it is the function of the drain that strongly suggests the existence of a more extensive dominant tenement.

(3) The third exception

  • 38 Voet, Pandects, 8 4 13.

26This applies where the owner of the servient tenement personally bars himself as regards objection to an extension of the benefit of the servitude to adjoining land. This is truly not a special exception to the Irvine Knitters rule but an application of a general principle. The basis of this line of authority is perhaps to be seen in Roman Dutch and Roman law. The Roman Dutch writer Johannes Voet (1647-1713) illustrates this by reference to a servitude of leading water:38

Et aquae ductum habens, inde rursus aquam alteri nequit praedio concedere, nisi id nominatim pacto praeter ordinariam servitutum naturam actum sit. Nec ad alium fundum proprium postea forte acquisitum ducere: imo, ne ad aliam quidem eiusdem fundi partem, quam ad quam servitus ab initio acquisita fuit.

And one who has a right of waterleading cannot in turn grant water out of it to another tenement, unless that has been specially arranged by agreement apart from the ordinary nature of servitudes. Nor can he lead to another farm of his own which perhaps he has later acquired. Nay he cannot do so even to another part of the same farm than that for which the servitude was originally acquired.1

  • 39 D 8.3.24 (Pomponius) and D 8.3.33 (Africanus).

27This, in turn, is derived from the writings of the Roman jurists Pomponius and Africanus collected in the Digest of Justinian.39 They wrote respectively as follows:

Ex meo aquae ductu Labeo scribit cuilibet posse me vicino commodare: Proculus contra, ut ne in meam partem fundi aliam, quam ad quam servitus adquisita sit, uti ea possit. Proculi sententia verior est.
Per plurium praedia aquam ducis quoquo modo imposita servitute: nisi pactum vel stipulatio etiam de hoc subsecuta est, neque eorum cuiuis neque alii vicino poteris haustum ex rivo cedere: pacto enim vel stipulatio intervenientibus et hoc concedi solet, ...

Labeo states that if I have a right to channel water, I can oblige any neighbour I chose with the use of the watercourse. Proculus, on the other hand, holds that I cannot even use it for the benefit of any part of my estate other than that for which the servitude was acquired.
You are channelling water across the estates of a number of owners by virtue of a servitude, however created. You cannot grant the right to draw water from the channel to any of these owners whom you chose or to another neighbouring proprietor, unless a pact or stipulation was added to this effect. Such a right is normally granted by the addition of a pact or stipulation ....

  • 40 Van der Merwe v Wiese 1948 (4) SA 8 (C) at 14 per Fagan J and discussed in R J P Jordan, “Praedial (...)
  • 41 See Cusine and Paisley, Servitudes and Rights of Way (n 3) 377-85, para 11.37-11.46; E C Reid and (...)
  • 42 Ben Henderson and Mrs M A (otherwise Rita) Henderson and Michael John Walker and Mrs Gail Mather W (...)
  • 43 Price and another v Nunn [2013] EWCA Civ 1002.
  • 44 At para 32.

28This reference to a special arrangement in the passage from Voet, quoted above, was considered in the South African Courts as having the potential to permit the recognition of a new servitude in addition to the primary servitude.40 In the case in hand that was regarded as an additional personal servitude but, on different facts, could potentially be a praedial servitude benefitting the additional land. Scots law has some difficulty in recognising that servitudes are created by personal bar alone.41 The better analysis appears to be that the doctrine precludes the Erskine, John of Carnock enforcement of the Irvine Knitters rule by the person concerned, the present servient proprietor, but that this bar remains personal and would not bind his singular successors. They, of course, could bar themselves by their own acts. This personal bar preventing the servient proprietor’s objection to an extension of the use of the servitude to benefit land adjacent to the dominant tenement has been recently applied in the Scottish case.42 A broadly similar principle is known in England43 albeit in the most recent case relating to the matter sufficient facts were not proved to apply the doctrine.44

  • 45 Prescription and Limitation (Scotland) Act 1973 s 3 (2); See also the observations in the English (...)

29To give rise to personal bar the actings of the dominant proprietor must be known to the servient proprietor or at least reasonably ascertainable by him. Similar actings, even if unknown to the servient proprietor, if not hidden could be regarded as being “open” as that term is recognised in the context of the Scottish doctrine of positive prescription and may, in due course of time give rise to a prescriptive servitude in respect of which the dominant tenement comprises an area outwith the dominant tenement in the original servitude.45 The principle in all of this is clear. The servient proprietor, by doing nothing to prevent excessive use of a servitude, could contribute to the eventual creation of a second real right of servitude that entitles the dominant proprietor use the route of the original servitude to benefit an area outwith the dominant tenement in that original servitude.

(4) The fourth exception

30This exception may be best illustrated in a servitude of access. It applies where the activity on the additional land does not lead to a direct and single journey from that land across the dominant tenement and down the servitude road but there are actually two journeys interspersed by an intervening legitimate act of “processing,” “storage” or something similar.

31This exception is truly a way of saying that the basic rule in Irvine Knitters is not engaged at all. Put another way, there is no breach of the Irvine Knitters rule where someone using the servitude to access the dominant tenement does so in connection with a legitimate and genuine purpose on that dominant tenement before passing through to the additional land and there are substantially two separate journeys. This applies equally in reverse when someone leaves the adjoining land via the dominant tenement and then passes out to the public road over the servient tenement. There is no need in this case to show the use of the adjoining land is “ancillary” to the proper use of the dominant tenement. There is no need to show that the access to adjacent land was envisaged when the servitude was originally constituted. There is no need to show that the servient proprietor is personally barred from objecting. This is an entirely different exception with a different justification. All that needs to be shown is that the journey to/from the adjoining land from/to the dominant tenement is genuinely separate from a genuine journey to/from the dominant tenement over the servitude access. To explain why this is so requires a detailed examination of the general Irvine Knitters rule.

D. The Formulation of the General Irvine Knitters Rule with Specific Reference to the Fourth Exception

  • 46 Williams v James (1867) LR 2 CP 577 at 580-81 per Bovill CJ, at 581-82 per Willes J and at 583 per (...)
  • 47 1978 SC 109 at 119.

32In the context of a servitude of access it is a convenient shorthand to express the Irvine Knitters rule to the effect that a servitude of access is to be used only for the purpose of taking access to the dominant tenement. However, this abbreviation does tend to mislead somewhat. The rule is not that the servitude of access can be used only to take access to the dominant tenement but that the servitude of access may be used only for the legitimate and genuine purposes of the dominant tenement. It is worth confirming that this formulation relating to the purposes of the dominant tenement is indeed the position of both Scots and English law. In one of the leading English cases46 the various judges emphasised the easement of access could be used for the reasonable and honest use of the dominant tenement, a formulation which can be construed to open the door to consideration of the purposes of the dominant tenement. In Irvine Knitters the wording used was even more explicit in this regard in that Lord President Emslie spoke of the link of the servitude to the genuine “purposes of the dominant tenement.”47 This distinction between the servitude linked not to the dominant tenement but the purposes of the dominant tenement is subtle but very important. The distinction may immediately be illustrated by reference to simple examples with the underlying principle then being drawn out.

(1) Examples

33A rule which limits the exercise of a servitude of way to the geographic bounds of the dominant tenement is a rule that seeks a red line to be drawn round a dominant tenement and this is to be regarded as the ne plus ultra of anyone properly using the servitude. It would preclude anyone using the servitude of access to access the dominant tenement and then moving outside the boundary to conduct a simple operation such as painting the outside face of the fence on the boundaries of the dominant tenement. It would preclude the taking of access into the dominant tenement by means of a servitude of way and leaving the dominant tenement by means of a second servitude of way as the solum of the second servitude would be outside the dominant tenement. It would preclude the receipt of water in a plot of land by means of a contract or lease or other right enabling aqueduct into the dominant tenement and then the transport of that same water in tankers down a servitude road where the dominant tenement in that servitude road comprised the plot of land but not the source of the water. It would prevent a plot of land being used as a distribution centre for goods that need to be carted to other lands operated as part of the same business group. None of these examples fall foul of the Scottish rule that is to the effect that a servitude must be used for the legitimate and genuine purposes of the dominant tenement.

  • 48 (1918) 43 DLR 469 at para 31.

34In addition to these examples some further applications have been judicially noticed. If the rule were to the effect that the servitude may be used only to gain access to the dominant tenement (and not for the legitimate and genuine purposes of the dominant tenement) then the dominant proprietor taking access to the dominant tenement via the access servitude would have to retrace his steps if he wished to proceed to anywhere else. He clearly does not have to do so because this is not the rule. In the Canadian case of Miller v Tipling, Mulock CJ, sitting in the Ontario Court of Appeal, stated the matter thus:48

The law is well established that a right-of-way appurtenant to a particular close must not be used colourably or for the real purpose of reaching a different close. This does not mean that where the way has been used in accordance with the terms of the grant for the benefit of the land to which it is appurtenant, the party having thus used it must retrace his steps. Having lawfully reached the dominant tenement, he may proceed therefrom to adjoining premises to which the way is not appurtenant; but, if his object is merely to pass over the dominant tenement in order to reach the other premises, that would be an unlawful user of the way...

  • 49 (1970) 13 DLR (3d) 657 at para 23 per Stark J.

35One consequence of what is observed in this dictum is this. Having used the servitude and having reached the dominant tenement the dominant proprietor (and anyone else entitled to use the servitude as his invitee) is not wholly precluded from passing onto adjacent lands even if these adjacent lands are outside the dominant tenement. The point was re-emphasised in another Canadian case in which a passage from Gale on Easements was quoted. This is Gamble v Birch Island Estates Ltd, decided in the Ontario High Court.49

36It now remains to consider whether the law will permit the extension of the user of the right of way to additional property acquired by the grantee or its successors in title. This branch of the law appears to be well established. In Gale on Easements, 13th ed. (1959), p. 265, one finds this language:

“If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B. Romer L. J., Harris v. Flower & Sons (1905) 74 L. J. Ch. 127. It need hardly be said that the mere fact that the grantee uses the way to enter close A does not make close B incapable of access from A; the question must always be whether the ostensible use of the way for the purposes of the dominant tenement is genuine or colourable.”

  • 50 Para 9.56. This same passage also appears in earlier editions such as the 16th (1997) at para 9.31

37This is slightly reworded in later editions as may be illustrated by the nineteenth edition of Gale on Easements published in 2012:50

“It does not, of course, follow that the mere fact that the grantee uses the way to enter close A makes close B incapable of access from close A. The question must always be whether the ostensible use of the way for the purposes of the dominant tenement is genuine or colourable: “the true point to be considered … should seem to be, quo animo the party went to the close; whether really and bona fide to do business there, or merely in his way to some more distant place.”

  • 51 (1697) 1 Ld Raym 75 at 76 note (a); 91 ER 946 at 947.

38The quotation within this passage from the sixteenth edition of Gale is from the seventeenth-century English case of Lawton v Ward.51 This indicates the longstanding nature of this form of the rule related to the legitimate purposes of the dominant tenement. In Scotland we are not dealing with a variant of or exception to the rule established for the first time in Irvine Knitters but with the true nature of the rule itself.

  • 52 See e.g. Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] 233 CLR 528.
  • 53 See e.g. Skull v Glenister (1864) 16 CBNS 81; 143 ER 1055; Finch v Great Western R Co (1879) 5 Ex (...)
  • 54 See e.g. Telfer v Jacobs (1888) 16 OR 35; Purdom v Robinson, [1899] 30 Can SCR 64 at 71 per Sir He (...)
  • 55 See e.g. Berdur Properties (Pty) Ltd v 76 Commercial Road (Pty) Ltd 1998 (4) SA 62 (D) examined in (...)
  • 56 There is a discussion of the authorities in Cusine and Paisley, Servitudes and Rights of Way (n 3) (...)
  • 57 See, once again, the Canadian case of Miller v Tipling (1918) 43 DLR 469 at para 31 per Mulock CJ.

39It is clear that a dominant proprietor may not use the servitude of access to the dominant tenement merely for the purpose of taking access to lands outwith the dominant tenement. A number of Australian,52 English53 Canadian54 and South African55 cases illustrate this. It is little surprise that Scots law is to similar effect.56 The rule may now be regarded as well established and is expressed in the phrase – the dominant tenement may not be used as a “bridge.” A clear cut case is where the dominant proprietor uses the servitude merely for the purpose of taking access to property outwith the dominant tenement and the servitude is used merely for the “colourable” purpose of taking access to those premises.57 Such a taking of access to property outwith the dominant tenement without any reference to the use of the dominant tenement itself is not part of the legitimate purposes of the dominant tenement.

(2) “Legitimate and genuine purpose”

40What then distinguishes the “legitimate and genuine” purposes of the dominant tenement from a mere “colourable purpose”? This is a simple question with a multifaceted answer. The following discussion may be helpful in making the distinction.

(3) Single journeys

41Single unbroken journeys, particularly if repeated, are likely to fall foul of the Irvine Knitters rule and be regarded as using the dominant tenement as a “bridge.” If the taking of access involves a single, unbroken journey over the servient tenement through the dominant tenement to the land outside the dominant tenement that is likely to be regarded as an improper use of the servitude. This would apply mutatis mutandis to egress out to the public road from land outwith the dominant tenement.

42However, this is not an absolute rule because, quite apart from the ancillary uses examples noticed above, it may be possible to construct an argument that there may be instances where a journey to a point outwith the dominant tenement could be regarded as genuinely for the purposes of the dominant tenement itself. For example, if a dominant proprietor is approached by a neighbour who requests a one off permission to use the servitude access and then to cross the dominant tenement to carry out some small task on the neighbouring property, it would appear to be good neighbourliness on the part of the dominant proprietor to allow such a journey. It seems at least arguable that such a good neighbourly act would be within the genuine purpose of the use of the dominant tenement and would not be regarded as using the dominant tenement as a bridge. However, such acts may require to be relatively small and this particular example does appear to stretch the point a little. The better view seems to be that such access may simply constitute a de minimis breach which is not truly an exception but is simply not worth litigating. It is most unlikely that this neighbourly behaviour example could be extrapolated to allow a journey for major engineering or building works (even on a one off basis) on the adjacent land or activities such as the widespread planting of trees on, or removal of trees from, the adjacent land if that was not also related to the legitimate and genuine purposes of the dominant tenement. On balance, it seems best to seek to justify single journeys to a point outwith the dominant tenement by reference to the “ancillary use” exception.

(4) Separate journeys

43Separate journeys (a) over the servient tenement to the dominant tenement and (b) from the dominant tenement to the adjacent land comply with the Irvine Knitters rule in that they do not use the dominant tenement as a “bridge.” Where the dominant proprietor takes access over the servitude road into the dominant tenement for legitimate and genuine purposes within the dominant tenement, this, if there were to be nothing else, clearly complies with the rule. If he should then make an entirely separate journey from the dominant tenement into the adjacent land, this will comply with the rule because he is not in any way exercising the servitude in respect of this second journey. So too if he returns to the dominant tenement and then makes a separate journey out through the servient tenement this is not in any way an exercise of the servitude and will not breach the Irvine v Knitters rule. The key issue is that the journey to the dominant tenement over the servient tenement and the journey from the dominant tenement to the servient tenement are “separate.” It is not enough to preclude the journeys from being separate to show that the second journey into the adjacent lands could be made only after making the first journey. So too it is not enough to preclude the journeys from being regarded as separate to show the dominant proprietor has put himself into the position to make the second journey by making the first.

(5) How to distinguish separate journeys

44The separate nature of the journeys (a) across the servient tenement to the dominant tenement (“the first journey”) and (b) from the dominant tenement to adjacent land (“the second journey”) can be observed from certain circumstances. It is important to note that none of the factors identified below will be determinative in its own right. They will all be assessed together to determine whether the servitude is being exercised for the genuine purposes of the dominant tenement.

(6) A gap in time between journeys

45A gap in time between the various journeys assists in showing they are separate and thereby in complying with the Irvine Knitters rule. Let us look at an extreme case which illustrates the matter beyond all doubt and then move onto more usual situations. In the extreme case a person who has entered the dominant tenement a year ago may leave that dominant tenement and pass into adjacent land as he pleases. The gap of a year is more than sufficient to show the second journey has no connection with the first. More usual day to day cases involves a lesser period of time but this does not preclude a shorter period being a sufficient gap between the journeys. If a lorry or van leaves the public road, using the servitude of access to cross the servient land and enters a factory on the dominant tenement and stops there for a legitimate reason, that amounts to a genuine self-contained journey to the dominant tenement over the servitude road. If, later in the same day, for some legitimate reason that lorry or van then moves to another part of the factory complex on land adjacent to the dominant tenement that may be regarded as a separate self-contained journey from the dominant tenement to adjacent land and not an abuse of the servitude of access to the dominant tenement because it does not involve any exercise of the servitude. The fact that there is a gap in time between the two journeys assists in demonstrating the separate and legitimate nature of the journeys.

  • 58 (1867) LR 2 CP 577.
  • 59 Ibid.
  • 60 Forrester & Fleetham v Sharp, 6 Mar 2001, unreported, LTS/LO/2000/45.

46Certainly, it may be that the longer this intervening time gap is, the easier it may be to demonstrate two separate journeys. For example, in one nineteenth century English case, Williams v James,58 the period of time between moving hay from adjacent fields onto the dominant tenement and the transport of the hay down the servient road was rather vaguely stated as the period between summer and September.59 That might have been as little as a few weeks but also it could have been a month or so. The period was a factor in determining that the dominant proprietor’s use of the easement of access to the dominant tenement was consistent with the proper exercise of that right. Another example of a time period of what is probably about a week or a fortnight may be observed in a Scottish case.60 The exact time period is uncertain but, as will become clear from the dictum quoted below, may be calculated with reasonable certainty by reference to the time between repeat municipal bin collections. In the Scottish litigation in question the Lands Tribunal considered an expressly constituted servitude of passage in the following terms:

… a right of access over the footpath lying to the side and rear of the adjoining subjects known as number Six Maxwell Crescent, aforesaid which footpath is shown delineated and hatched in black on the plan Declaring that the right of access hereby granted is for the purpose of gaining access to and egress from the rear garden ground pertaining to the subjects disponed and for no other purpose whatsoever…

  • 61 Page 5 of the written decision.

47In their comments the Lands Tribunal observed:61

We do not accept that the use of a wheelie bin is an improper use of the right of access. Use of a garden for storage of a wheelie bin must now be accepted as a reasonable garden use. That the refuse in the wheelie bin may come from the house rather than the garden does not affect the means for access and egress to and from the garden by someone using a wheelie bin.

  • 62 Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd 1978 SC 109.

48In the Irvine Knitters case itself, a small shop on the original dominant tenement (84-90 High Street) and property on additional adjacent land on either side of the original dominant tenement were demolished and rebuilt as a single larger shop on a composite site (78-106 High Street) including the original dominant tenement and the additional land.62 It was during the construction phase that the servient proprietors first raised objections to construction traffic using the servitude over their land. Presumably the route of access had been a quiet back lane and then, without their agreement, it became an access to a construction site and was traversed by lorries carrying materials and equipment. One wonders if a degree of sensitivity and diplomacy on the part of the dominant proprietors or their contractors might have avoided any problem. However, that was not to be. What then followed was a little surprising, at least at first blush. Instead of litigating the matter on the basis of inciviliter use (the first legally implied servitude condition) or by reference to an asserted unwarranted increase in the burden on the servient tenement (the second legally implied servitude condition), the servient proprietors took a different approach. They argued that the proposed access to the new shop would breach the third legally implied servitude condition in that the dominant proprietor sought to take access to land outwith the dominant tenement. This approach had tactical advantages in that it avoided a difficult examination of matters of fact and law regarding the conduct of the dominant proprietors (or their contractors) within the servient tenement and concentrated attention on interpretation of titles where one might anticipate an answer might be more clear-cut particularly where a plan is attached to the title deeds. It also allowed the servient proprietors to seek the remedy of interdict even after the construction traffic had ceased and enabled them to object to the future commercial use of the composite shop. So, the commercial pressure could be maintained on the dominant proprietors even if they were to rush through the construction phase and claim the offending conduct had already ceased.

  • 63 At 119.

49Consequently, it was not until the development was complete that litigation actually started as regards the proper use of the existing servitude of passage. That servitude was exercisable over a private lane and originally gave access only to the rear of the original shop on the dominant tenement but not to the property on the additional adjacent land on either side. Lord President Emslie and Lord Cameron considered that the dominant proprietor could comply with the rule limiting the exercise of the servitude to original dominant tenement by converting the part of the new shop within the footprint of the old shop into a distribution centre. Lord President Emslie observed:63

… the access may unquestionably be used for all purposes to which the [dominant proprietors] choose to devote the dominant tenement and it is easy to figure that some rearrangement of the [dominant proprietors’] use of their new building, even if they choose to devote that part of it built on the dominant tenement exclusively to the function of a genuine distribution centre or store in connection with all their retail enterprises, will result in their being able to use the right of access for purposes which can be identified as the purposes of the dominant tenement. That a proprietor may use his dominant subjects for a genuine purpose which serves the interests of his business enterprise, as a whole, carried on in those subjects and elsewhere, cannot be doubted and the case of Williams v James is a good example of circumstances in which a proprietor’s use of a right of access to one of three fields on which he grew hay all of which he stacked on the dominant field, was held to be unexceptionable.

  • 64 At 122.

50Lord Cameron set out a similar view, albeit his observations as regards distribution appear to me more limited to distribution not to all other retail outlets but to distribution within the greater retail outlet on the composite site:64

I do not doubt that if the [dominant proprietors] decided to designate and to use the whole of the subjects 84-90 High Street as a store or distribution centre for the whole of their supermarket compound within the range of 78-106 High Street, they could legitimately do so, but equally I am of opinion that if they were to claim a right to import through the access or accesses giving on to 84-90, goods of any kind which immediately were delivered or transported to other parts of 78-106 High Street then they were acting beyond the legal limits of the right of way in favour of the subjects identified as 84-90 High Street. The proof appears to me to yield an inference beyond doubt that this is precisely what the [dominant proprietors] have been doing to a material degree. What the [dominant proprietors] are not entitled, in my opinion, to claim a right to do in virtue of this servitude right, is to use the subjects Nos. 84-90 as a “bridge” over which passengers or goods can pass as of right to the subjects Nos. 78-82. That the [dominant proprietors] might legitimately “ferry” such goods once properly received by this right of access into the subjects Nos. 84-90, used as a storage and distribution centre, by way of the public highway to other subjects in the same ownership is a very separate issue, and one in which other considerations might operate and I expressly reserve my opinion on that matter.

51There probably is an element of time delay suggested in these judicial references to the legitimate use of the dominant tenement as a storage or distribution centre in the context of a single retail unit straddling the dominant tenement and adjoining land. The process of storage or distribution usually takes some time. However, it would be fair to say that one would not expect material to rest in a store for months or even for weeks. It is worth remembering that the entire premises in Irvine Knitters were developed as a supermarket. It is reasonable to assume that perishables and fresh food would be delivered. It is equally reasonable to assume that when delivered to a distribution centre within the dominant tenement it would be a legitimate use of the dominant tenement to distribute this sort of material within a very short period of time, certainly within the same day, probably within hours if not minutes of its delivery to the distribution centre.

52Albeit Lord Cameron observed that materials could not be “immediately” delivered from the storage centre forming the dominant tenement to other parts of the building outside that tenement, the gap in time to constitute legitimate “storage” or “distribution” may be very short – possibly extending to a few minutes in appropriate commercial cases. One might surmise that the courts might be tempted to allow a party conducting a genuine business on the dominant tenement the opportunity to make a genuine business choice as to how long this period should be. If good commercial practice indicates that the storage period should be a certain period of time, it is to be doubted if the courts will take the view that this is wrong and impose some arbitrary period divorced from commercial reality. For example, it seems unlikely that the Courts would require fresh milk to be stored for days in order to qualify as the legitimate and genuine use of the area to which the milk was delivered as a storage facility. Similarly, where stone is extracted from a quarry face on the land outwith a dominant tenement and conveyed to places within the dominant tenement for processing and storage, it seems unlikely that the courts would require that process to be extended to some arbitrary minimum of time so that it might be regarded as sufficiently stored or processed to form part of the legitimate purposes of the dominant tenement. The important issue is that the material has gone through a genuine commercial process within the dominant tenement. Although foreseeability is not required, this seems all the more acceptable where the process is one which was within the contemplation of the parties when the servitude right of access and egress to and from that dominant tenement was granted.

53Indeed, it may be possible with regard to some journeys, that a gap in time is not essential to show that they are separate. A gap in time is just one factor in the identification of a gap between two legitimate journeys. For example, if a postman enters a factory on the dominant tenement via the servitude road and hands in a letter at the factory office, an employee in the office who picks up the same letter may wish to deliver it immediately to the addressee in another part of the factory complex which is located outside the dominant tenement. On the face of it there appear to be two separate legitimate journeys. The first enables access to the dominant tenement via the servient tenement. The second is undertaken as part of the purposes of the dominant tenement.

(7) Different transport for the two journeys

54A factor in showing the distinction between the two journeys may be the method of transport. Where different vehicles are used for the two journeys this may assist in showing the journeys are separate and thus in complying with the Irvine Knitters rule. This is particularly so where the vehicles carrying out the second journey never enter the servient tenement but are specialised vehicles adapted for the second journey. The access over the servient tenement to the dominant tenement is a general access for all purposes but the access taken to the adjacent land from the dominant tenement is for certain defined, limited purposes. For example, let us consider a dominant tenement operated as a quarry and containing rock crushing machinery, quarry offices and a weighbridge. Assume that the source of the rock is outside the dominant tenement and the dominant tenement is accessed via a single servitude of access from the main public road. If workmen employed at the quarry travel along the public road and up the servitude road and arrive in their own private cars they may park them in a safe area within the quarry (the dominant tenement). Following modern work practices, we may assume, typically, they will then dismount from their vehicles and sign into work in some way and not use their private cars until they leave at the end of the day. That entry into the quarry on the dominant tenement represents a single journey. It is separate and distinct from any journeys they might make within the quarry. Even if these same employees drive quarry trucks, vans or lorries back and forth all day between the dominant tenement and the rock face within the adjoining land, this is arguably not a misuse of the servitude of access. These journeys made during the working day are all separate journeys between the dominant tenement and the adjacent land and the workmen do not use the servitude route at all. These journeys are all legitimate uses of the dominant tenement. Even if the initial journey of the employee in the morning and his last journey at night both require him or her to cross the servient tenement, and even though this initial and last journey is carried out to enable the workmen to carry out their jobs (which necessarily involves repeatedly passing into land adjacent to the dominant tenement), arguably this would not be a misuse of the servitude of access. In addition, the position appears to be no different even if a workman had a role in the quarry that required him to spend most of his working day at the quarry face in the adjacent land. His private car, presumably, is parked at a safe place in the quarry (the dominant tenement).

55This applies mutatis mutandis to journeys out of the adjacent land and into the dominant tenement. For example, where material is ferried into the dominant tenement from the quarry face on the adjacent land by special vehicles (such as large quarry trucks unsuited or un-licenced for the public road) and deposited in the dominant tenement and, at some later stage, is taken out of the quarry on the dominant tenement over the servitude in different vehicles licenced for public road use, this will be a factor in demonstrating two separate journeys.

56An example in a domestic setting could be as follows. A house with attendant garage is built on a dominant tenement benefited by a vehicular servitude of access. A part of the garden to the house, comprising the lawn, is held on a separate title not benefited by the servitude of access. If the owner of the house comes home from work in her car she will park it in the garage. After entering the house to change clothing she may take a mower from the same garage and proceed to the lawn to cut the grass. The second journey to the lawn outside the dominant tenement is made on foot. An additional factor favourable to regarding this journey as separate from the one taken over the servient tenement is the fact that the second journey is not taken every time the first journey is completed. Normally, a person does not mow his or her lawn every evening in the year. In this regard it is possible to argue there is a distinction with the quarry example given above. It may be a factor adverse to showing the journey to the quarry face is indeed separate journey if the workmen invariably make the second journey every time they complete the first journey.

(8) Nature of the activity between the journeys

57The dicta quoted above from the Irvine Knitters case contemplated involved storage and distribution on the dominant tenement. It is important to note that this is not a closed list of the activities that may be taken into account in determining if there are two separate journeys. These two activities identified in Irvine Knitters are largely “passive” in their nature, albeit distribution infers the activity of sorting and taking away. If such passive activities are sufficient to distinguish one journey from another, it seems likely that a more “active” manufacturing process between journeys would lead to a stronger case.

58At the lower end of the spectrum of “active” behaviour one could cite the instance of employees reporting for work at a site hut on the dominant tenement and then passing to a point of work on the adjacent land outwith the dominant tenement whether that land is owned or leased by the employer. The fact that signs are placed on the dominant tenement which expressly require such reporting of employees and members of the public could be argued to indicate, in a modest way, the policy of complying with a two separate journey requirement. Further across the spectrum one may refer to a process of manufacture of some sort on the dominant tenement which is a much more active “activity.” For example, where a source of sand or particular clay in an adjacent field facilitates a cement making business on a dominant tenement, the servitude of egress from that dominant tenement may be used to ferry out the finished product of cement even though it contains sand that had its origins in the land outwith the dominant tenement. This seems to hold good whether the sand is dug out of the adjacent land by vehicular diggers driven by men or by some sort or automated machine with conveyor belts. A multitude of other variants, of even more intense activity and duration, can be imagined.

(9) No artificial expedients to mark a distinction

  • 65 (1867) LR 2 CP 577.
  • 66 At 577.
  • 67 At 580.
  • 68 At 582-83.
  • 69 At 582.

59It is clear that the Courts will be alert to artificial expedients intended to exaggerate a distinction between the two journeys. Such artificial expedients will be discounted entirely. This approach is clear from the highly significant nineteenth century English case of Williams v James65 which was relied on in Irvine Knitters. This English case involved the owner of the solum of the route of an easement of access seeking a declaration for trespass to land. The easement benefited a field known as the Nine acre field. The owner of that field also owned two adjoining fields known as Parrott’s land. Those two fields had no easement over the plaintiff’s land. In the summer of 1866 the tenant of all three fields mowed all three fields and stacked the hay on the Nine acre field. In September the tenant sold the hay to the defendant who extracted it via the route of the easement. The jury found that the stacking of the hay was done “honestly.”66 All the judges opining considered this significant. Bovill, C. J. indicated that there must be a bona fide and not a mere colourable use of the right of way.67 The stacking of the hay was in the ordinary and reasonable uses of the dominant tenement and therefore complied with this. So too was carriage of the hay out within the “ordinary and reasonable” uses of the servitude itself. Similar sentiments were expressed by Montague Smith J68 and Willes J. The latter of these judges expressed himself as follows:69

The finding of the jury was, that the land was used honestly, and not in order to get a right of way further on. This is equivalent to finding that the stacking of hay on the Nine acre field was in the reasonable and ordinary use of it as a field; and also that the carting was from the Nine acre field and not from Parrott’s land.

60There was no issue of using the ground as a distribution centre to commercial retail centres in this English case although, it seems reasonable to surmise that the hay would be used on other farms or perhaps even sold at market.

  • 70 Giles v Tarry [2012] EWCA Civ 837.
  • 71 At paras 10-23 per Norris J.

61In the passage of his opinion in Irvine Knitters quoted earlier, Lord Cameron expressly reserved his view as to whether goods could be taken over the servient tenement by means of the servitude into the part of the new shop located on the dominant tenement, then immediately out onto the public road and then directly into the remainder of the shop outside the dominant tenement. If this indeed were to be possible it would amount to a neat trick in the particular location of the shop to enable circumvention of the Irvine Knitters rule. The very same device came up for consideration in a more recent English case involving an agricultural operation.70 A farmer owned two separate but adjacent fields only the first of which was benefited by an easement of access. The first field also benefited from a gate leading directly out to the public highway. The easement could not be used by the famer to bring his sheep directly to the second field. So, to circumvent this limitation, he led them over the easement of access into the first field and out onto the public road. Following a brief pause on the public road, he led them back into the dominant tenement and across into the adjacent land. In the Court of Appeal it was held this was an artificial device or expedient and the farmer, in substance and intention, was using the easement to access property outwith the dominant tenement.71 From this it is clear that in applying the Irvine Knitters rule that the law will give no regard to commercially pointless and self cancelling manœuvres intended to give an impression that there are two separate journeys.

(10) Servitude conditions in the servitude excluding the activity

  • 72 Wilkins and Wilkins v Lewis [2005] EWHC 1710 (Ch).
  • 73 See Wilkins at paras 31 and 37 et seq, especially at 50.

62In some situations the servient proprietor may be able to preclude the activity which the dominant proprietor wishes to carry out on the dominant tenement to justify the distinction between the first and second journeys. For example, if a servitude of access is granted with the express servitude condition that the servitude will not be used to facilitate storage or a distribution centre on the dominant tenement, the servient proprietor will be entitled to seek interdict of any traffic purporting to use the servitude where that traffic is bringing material into the dominant tenement for storage or distribution even to adjacent property owned by the dominant proprietor. An example of this occurred in a recent English case.72 In that case the storage of agricultural materials on the dominant tenement where those materials had been grown outside the dominant tenement was held to be in breach of the title conditions (imposing a servitude condition) requiring it to be used for the business of running an agricultural and forestry estate.73 Consequently, it was not permissible to seek to use the easement to facilitate such storage.

E. Conclusion

  • 74 See also the South African case of Berdur Properties (Pty) Ltd v 76 Commercial Road (Pty) Ltd 1998 (...)

63In all of the above it is important to recognise that the potential existence of various exceptions does not empty the Irvine Knitters rule against use of the dominant tenement as a bridge of all substance. There remain cases, chiefly involving a building or a business in a building straddling the dominant tenement and adjacent land, where it does operate – indeed this is illustrated by the actual decision in Irvine Knitters.74 However, the various exceptions outlined above are yet to be fully judicially explored and developed. If this is done the rigid use of the rule to cause injustice will be avoided and Scottish property law will operate better for both the dominant and servient proprietors.

Notes

1 Irvine Knitters Ltd v North Ayrshire Cooperative Society Ltd 1978 SC 109. For material in the National Archives of Scotland see CS258/1976/11833.

2 Praedial (otherwise predial) servitudes benefit a plot of land known as the dominant tenement or benefited property. They are to be distinguished from personal servitudes which benefit a legal person. Both types of servitudes burden a plot of land known as the servient tenement or burdened property. However, given that they lack a dominant tenement, the Irvine Knitters rule has no application to personal servitudes or similar rights: Monkland and Kirkintulloch Railway Company v Dixon (1842) 1 Bell’s App Cas 347 at 360 per the Lord Ordinary (Jeffrey).

3 D J Cusine and R R M Paisley, Servitudes and Rights of Way (1998) paras 12.164-12.179. The other two legally implied servitude conditions are that the servitude will be exercised (a) civiliter, i.e. in a reasonable manner and (b) so that it does not exceed the acceptable burden on the servient tenement. The dispute in Irvine Knitters was sparked by construction traffic on the servient tenement going to the redevelopment on the dominant tenement and prima facie engaged both of these. However, their application requires and assessment of the impact of conduct whereas the limitation of the servitude to the benefit of the purposes of the dominant tenement involves an examination of title and is often perceived as holding out a clearer way to stop the unacceptable behaviour of the dominant proprietor. The thrust of this essay is that matters are perhaps not so cut and dried as that.

4 See e.g. the limited number of government backed projects where the Scottish Parliament disapplied the Irvine Knitters to assist the development: Forth Crossing Act 2011 s 27; Airdrie-Bathgate Railway and Linked Improvements Act 2007 ss 37 and 54; Edinburgh Airport Rail Link Act 2007 s 55; Glasgow Airport Rail Link Act 2007 s 42; Waverley Railway (Scotland) Act 2006 s 44.

5 The legally implied servitude condition, being a negative in nature, cannot be varied or discharged by reference to the Lands Tribunal in terms of the Title Conditions (Scotland) Act 2003 ss 90 and 122 (1) definition of “title condition,” para (c).

6 The Irvine Knitters Limited, Company Number SC026008, was incorporated on 31 December 1947 but is now dissolved, having been taken over in 1968 by Courtaulds plc. The archives of the company are privately held and enquiries may be made to the National Archives (England), Archives Sector Development under reference NRA29343 Courtaulds plc and reference GB/NNAF/C102224 (former ISAAR ref GB/NNAF/B3426). See also B G Rudd, Courtaulds and the Hosiery and Knitwear Industry (2014) 68, 77-78, 126-28, 134-35 and 158.

7 It is described as “well known” in Hay v Hay or Robertson (1845) 17 Sc J 186 at 187 per the Lord Ordinary (Cuninghame).

8 D 8.3.29 (Paul); D 8.3.33 (Africanus).

9 1809, 15 FC 397. The case is named as Bogle v Bogle in Hume, Lectures, vol 3 (Stair Society No 15) 281.

10 (1862) 24 D 149. For material in the National Archives of Scotland, see reference RHP40965 containing a plan of part of lands concerned.

11 See e.g. Brown v Kinloch, 20 Dec 1775, M 14542, with a relevant plan in the National Archives of Scotland at reference RHP4008; Stewart v Caithness: Stewart v Smart (1788) Hume 731 with material in the National Archives at reference CS271/34657; Scoullar (otherwise Brownlee) v Robertson (1829) 7 S 344, with material in the National Archives at reference CS46/1830/3/4.

12 1991 SLT 64. For material in the National Archives of Scotland, see references CS258/1989/2650A and CS258/1992/4088.

13 1991 SLT 64 at 68. The law as stated in the latter part of the quotation is incorrect. The use of a servitude of access to benefit land outwith the dominant tenement breaches the Irvine Knitters rule even though such use reduces the burden of traffic passing on the servient tenement: Cusine and Paisley, Servitudes and Rights of Way (n 3) para 12.158. Material is available in the House of Lords archives under references HL/PO/JO/10/11/2590 and HL/PO/JU/4/3/1681.

14 Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd 1978 SC 109 at 117 per Lord President Emslie and 121 per Lord Cameron.

15 See e.g. Giles v Tarry [2012] EWCA Civ 837 at para 41 per Lewison LJ; Peacock v Custins [2002] 1 WLR 1815 at para 19 per Schiemann LJ.

16 As is demonstrated by the English case of Williams v James (1867) LR 2 CP 577.

17 Magistrates of Dunbar v Sawers (1829) 7 S 672. For assorted relevant material in the National Archives of Scotland see the references CS235/D/27/2, CS271/55016, CS311/11, GD314/63 and GD314/64. See also Scoullar (otherwise Brownlee) v Robertson (1829) 7 S 344.

18 In Magistrates of Dunbar v Sawers (1829) 7 S 672, the magistrates granted a servitude of drainage. There was an express reservation of the magistrates (who were the servient proprietors) as a counter stipulation to the servitude of the right to enter the dominant tenement and put up works to ensure that the dominant proprietor did not use drain for adjacent land. The exact nature of that reservation is unclear. It may have been a real burden or a servitude condition.

19 Giles v Tarry [2012] EWCA Civ 837.

20 R Rennie, Minerals and the Law of Scotland (2001).

21 In this regard see the terms of the Tenements (Scotland) Act 2004 s 2 (7). It is unstated whether this section carries with it a servitude of access to obtain access to the additional triangular area of airspace but, it is submitted, such a servitude is likely to be implied by statutory expansion of the dominant tenement of any servitude benefiting the sector including the roof failing which the taking of access to the triangular area may breach the Irvine Knitters rule.

22 See e.g. Duke of Hamilton v Graham (1871) 9 M (HL) 98; W Davidson v Duke of Hamilton and W Walker (1822) 1 S 411; Turner (Tait’s Trustee) v Ballandene and Husband (1832) 10 S 415 at 418 per Lord Craigie.

23 Dand v Kingscote (1840) 6 M & W 174, 151 ER 370; Durham and Sunderland Rail Co v Walker [1842] 2 QB 940.

24 Hamilton v Graham (1871) 9 M (HL) 98. The rule in Irvine Knitters would also be inapplicable if the access were taken over an area held in common property by the owner of the benefited property: Gavin v Junor 2009 SLT (Sh Ct) 158; MacKay v Gaylor 2014 SLT (Sh Ct) 131. An issue of construction sometimes arises as to whether a right expressed in loose terms is a servitude of access or a right of common property: Willemse v French 2011 SC 576.

25 The English cases comprise National Trust v White [1987] 1 WLR 907; Macepark (Wittlebury) Ltd v Sargeant [2003] 1 WLR 2284; Das v Linden Mews Ltd [2002] 2 EGLR 76; Peacock v Custins [2002] 1 WLR 1815; Massey v Boulden [2003] 1 WLR 1792; Martin Wilkins and Wendy Wilkins v Thomas William Lewis [2005] EWHC 1710 (Ch).

26 Blair v Strachan, 20 Jun 1889, Sheriff Guthrie Smith. See Aberdeen Weekly Journal, 25 Jun 1889. There is other material relevant to the case in the Aberdeen Journal, 13 Mar 1889 at 7; Aberdeen Evening Express 13 Mar 1889 at 3. The property was at 124 Hadden Street, Woodside, Aberdeen.

27 The use of “was” in the quoted text follows from the odd Scottish conveyancing convention that regards “the subjects” as singular.

28 There was further litigation on a matter of obstruction of the same servitude of access reported as Blair v Strachan (1894) 21 R 661. For material in the National Archives of Scotland relative to both actions see CS46/1890/6/56 and CS46/1894/6/65.

29 See the note of the terms of the interlocutor in that appeal at (1894) 31 SLR 548 at 549. There is similar authority in Canada excluding the possibility of taking access via an easement of access to a plot adjacent to the dominant tenement even though the use of that plot benefited the dominant tenement: Gordon v Regan (1985) 15 DLR (4th) 641 at paras 28-37 per Griffiths J.

30 Massey v Boulden [2002] EWCA Civ 1634, [2003] 2 All ER 87.

31 Martin Wilkins and Wendy Wilkins v Thomas William Lewis [2005] EWHC 1710 (Ch).

32 As noted in Macepark (Wittlebury) Ltd v Sargeant [2003] 1 WLR 2284 by Gabriel Moss QC, who attempted to provide some guidance as to the meaning of “ancillary.”

33 For this a servitude tigni inmittendi would be needed.

34 The possibility of the implied grant of such ancillary rights was recognised in Moncrieff v Jamieson 2008 SC (HL) 1. It is a fortiori the case that such rights may be granted expressly.

35 Express provision would expressly bring the additional land within the dominant tenement and thus access to that additional land would comply with the Irvine Knitters rule. However, there are difficulties in the drafting and registering of deeds with such express provision: Cusine and Paisley, Servitudes and Rights of Way (n 3) paras 2.41-2.43; Title Conditions (Scotland) Act 2003 s 75.

36 See e.g. Thorpe v Brumfitt (1872-73) LR 8 Ch App 650; Callard v Beeney [1930] 1 KB 353.

37 See e.g. Shean Pty Ltd v Owners of Corinne Court [2001] WASCA 311; Owners Corporation – Strata Plan no 8450 v Owners Corporation – Strata Plan No 54547 [2002] NSWSC 780; Perpetual Trustee Company Limited v Westfield Management Ltd [2006] NSWCA 337; Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] 233 CLR 528.

38 Voet, Pandects, 8 4 13.

39 D 8.3.24 (Pomponius) and D 8.3.33 (Africanus).

40 Van der Merwe v Wiese 1948 (4) SA 8 (C) at 14 per Fagan J and discussed in R J P Jordan, “Praedial servitudes: the imposition of positive duties upon the servient owner” (1958) 75 SALJ 181 at 186.

41 See Cusine and Paisley, Servitudes and Rights of Way (n 3) 377-85, para 11.37-11.46; E C Reid and J Blackie, Personal Bar (2006) paras 6.56 and 6.63; Moncrieff v Jamieson 2005 1 SC 281 at paras 25-29 per Lord Marnoch and paras 80-86 per Lord Hamilton; Moncrieff v Jamieson 2007 SC (HL) 1 at para 46 per Lord Scott of Foscote; Robson v Chalmers Property Investment Co Ltd 2008 SLT 1069; George Jobson Forbes Fyvie v J Ross Morrison and Yvonne Morrison, Arbroath Sheriff Court, case ref A155/98, decision of Sheriff Principal R A Dunlop QC and decision of the Sheriff on 10 Dec 1999. For more general application see MacGregor v Balfour (1899) 2 F 345 per Lord President Balfour at 352; Munro v Jervey (1821) 1 S 161; cf Winans v Lord Tweedmouth (1888) 15 R 540.

42 Ben Henderson and Mrs M A (otherwise Rita) Henderson and Michael John Walker and Mrs Gail Mather Walker and Andrew Connor and Linda Connor v William Irvine and Mrs Gillian Irvine, Alloa Sheriff Court, case ref A314/08 (hearing 20 Apr 2010), note of Sheriff D N Mackie. See K G C Reid and G L Gretton, Conveyancing 2010 (2011) 13.

43 Price and another v Nunn [2013] EWCA Civ 1002.

44 At para 32.

45 Prescription and Limitation (Scotland) Act 1973 s 3 (2); See also the observations in the English case of Smiths v Muller and Fowlers [2008] EWCA Civ 1425 at para 10 per Rimer LJ; CDC2020 Plc v Ferreira [2005] EWCA Civ 611 per Lloyd LJ at para 21; Mills v Silver [1991] Ch 271.

46 Williams v James (1867) LR 2 CP 577 at 580-81 per Bovill CJ, at 581-82 per Willes J and at 583 per Montague Smith J.

47 1978 SC 109 at 119.

48 (1918) 43 DLR 469 at para 31.

49 (1970) 13 DLR (3d) 657 at para 23 per Stark J.

50 Para 9.56. This same passage also appears in earlier editions such as the 16th (1997) at para 9.31.

51 (1697) 1 Ld Raym 75 at 76 note (a); 91 ER 946 at 947.

52 See e.g. Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] 233 CLR 528.

53 See e.g. Skull v Glenister (1864) 16 CBNS 81; 143 ER 1055; Finch v Great Western R Co (1879) 5 Ex D 254; Harris v Flower & Sons Limited [1904] WN 106; Ackroyd v Smith (1850) 10 CB 164, 138 ER 68.

54 See e.g. Telfer v Jacobs (1888) 16 OR 35; Purdom v Robinson, [1899] 30 Can SCR 64 at 71 per Sir Henry Strong CJ; Friedman v Murray [1953] 3 DLR 313; Pearsall v Power Supermarkets [1957] 8 DLR (2d) 270; Gordon v Regan (1985) 15 DLR (4th) 641 at paras 28-37 per Griffiths J; Eastern Contractors v Gamble (1970) 13 DLR (3d) 657; Graham v Kucera 2009 BCSC 1508.

55 See e.g. Berdur Properties (Pty) Ltd v 76 Commercial Road (Pty) Ltd 1998 (4) SA 62 (D) examined in R R M Paisley, “The demon drink and the straight and narrow way: the expansion and limitation of praedial servitudes,” in H Mostert and M J de Waal (eds), Essays in Honour of CG van der Merwe (2011) 193.

56 There is a discussion of the authorities in Cusine and Paisley, Servitudes and Rights of Way (n 3), paras 12.64 et seq.

57 See, once again, the Canadian case of Miller v Tipling (1918) 43 DLR 469 at para 31 per Mulock CJ.

58 (1867) LR 2 CP 577.

59 Ibid.

60 Forrester & Fleetham v Sharp, 6 Mar 2001, unreported, LTS/LO/2000/45.

61 Page 5 of the written decision.

62 Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd 1978 SC 109.

63 At 119.

64 At 122.

65 (1867) LR 2 CP 577.

66 At 577.

67 At 580.

68 At 582-83.

69 At 582.

70 Giles v Tarry [2012] EWCA Civ 837.

71 At paras 10-23 per Norris J.

72 Wilkins and Wilkins v Lewis [2005] EWHC 1710 (Ch).

73 See Wilkins at paras 31 and 37 et seq, especially at 50.

74 See also the South African case of Berdur Properties (Pty) Ltd v 76 Commercial Road (Pty) Ltd 1998 (4) SA 62 (D).

Auteur

Acheter

Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search