Head 18: Servitudes

Question 1

*Moncrieff v Jamieson 2008 SC (HL) 1

Answer 1

 There was an access servitude which no one disputed but the question was whether there was a servitude of parking ancillary to it.
 The HOL held that this was the case. Also mentioned in obiter that there can be a free standing servitude of parking.

Question 2

Compugraphics International Ltd v Nikolic 2011 SC 744

Answer 2

 There was an industrial building which had ventilation and air condition system and some of the pipes stretched out of the building and entered into the neighbour’s airspace.
 Held that that was a permissible servitude in Scotland.

Question 3

*Gow’s Trs v Mealls (1875) 2 R 729.

Implied Servitude by grant

Answer 3

 There was a piece of land owned by the same party.
 There were buildings at the front and grounds at the back, land was divided into A and B.
 Access into A was often taken through B.
 There was however alternate access, which allowed access to A without having to go through B.
 Plot A was sold off in 1842, but the new owner continued to take access through plot B.
 Question was whether there was an implied right of servitude to get access to A, by walking through B.
 Held that there was no implied right of servitude as there was an alternate way of access available. (Which did not encroach on B.)

Question 4

Fergusson v Campbell 1913 1 SLT 241.

Answer 4

 Court of Session case.
 Case was about a mill and a mill lade (which is a channel of water that was required to serve the mill).
 Was held to be Utterly Necessary for the mill to be served by water, mill could not function w/o a water supply.
 Held that an implied reservation in the conveyance existed.

Question 5

*Irvine Knitters Ltd v North Ayrshire Cooperative Society Ltd 1978 SC 109
(only benefited property can take benefit of servitude)

Answer 5

 Irvine Co-op was built over two plots. Plot 1 and Plot 2.
 There was a servitude right of access to Plot 1 through a back lane.
 However, the Co-op were also using the back lane to take groceries to Plot 2.
 The owners of the back lane sought interdict to stop the Co-op using the back lane to bring supplies to Plot 2.
 The owners of the back lane were successful.

Question 6

Carstairs v Spence 1924 SC 380, 1924 SLT 300.

increase in burden on burdened property

Answer 6

 There was a servitude right of way created by prescription.
 At the time it was established the benefited property as a market garden.
 It then subsequently became a building site. (new owners began to build houses.)
 At that point the burdened proprietor sought an interdict to stop the builder carrying materials along the roadway.
 Held, on the facts, that the carrying of building materials was not greatly different to the carrying of vegetables from when the property was a market garden.