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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marshall & Anor v. Duffy & Anor [2002] ScotCS 64 (8th March, 2002)
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Cite as: [2002] ScotCS 64

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OUTER HOUSE, COURT OF SESSION

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD PHILIP

in the cause

DAVID MARSHALL and MRS CHRISTINE MARGARET MARSHALL,

Pursuers;

against

BRIAN DUFFY and SUSANNE STEVENSON,

Defenders:

 

________________

 

 

Pursuers: Francis; Gray Muirhead, W.S.

Defenders: Sir Crispin Agnew of Lochnaw, Q.C.; Robsons, W.S., S.S.C.

 

Click here to see a map of the estate.

8 March 2002
  • This action arises out of the break-up of the estate of East Overton, Strathaven, Lanarkshire, and in particular the division of the mansionhouse and the policies round about it. In their first conclusion, the pursuers seek a declarator that they, as proprietors of part of the former policies now called the Paddock, are entitled to a servitude right of pedestrian and vehicular access to their property over a service or access road which runs from the main Hamilton/Strathaven road to the mansionhouse of East Overton. The solum of the road is in the ownership of James Stobo and Sons, farmers, to whom intimation of this action was made, but who have not entered appearance. In the same conclusion, the pursuers also seek declarator that they are entitled to take access to the Paddock over part of subjects called the Courtyard, another part of the former policies, which lie adjacent to the Paddock, and are now in the ownership of the defenders. The second part of the conclusion, which does not make easy reading, seeks declarator that the pursuers are entitled to take pedestrian and vehicular access to the Paddock by way of an entrance formed on its north-west boundary from a building called "The Courtyard" on the defenders’ property, for the purpose of exercising a servitude right of pedestrian and vehicular access over an access drive which also forms part of the defenders’ property. The matter is sufficiently complex to require reference to a plan, which is annexed to this Opinion.

  • The case came before me on the Procedure Roll, when the defenders sought dismissal of the pursuers’ first conclusion on the ground that the pleadings supporting it were irrelevant. In response, the pursuers argued that they should be entitled to decree de plano in terms of that conclusion. The pursuers also have an alternative conclusion for rectification of certain dispositions granted in favour of the pursuers’ and the defenders’ predecessors. I heard no substantial argument on that conclusion, and as I understood it, parties were agreed that in relation to it the case required to be sent to proof before answer.

  • In order to make sense of the dispute, it is necessary to examine the somewhat complex conveyancing history of the break-up of the estate and the division of the mansionhouse and policies. It is helpful in the first instance to go back to 1946, when the documents produced in process indicate that the break-up of the estate began. In that year, the then owners of the estate, the Marriage Trustees of Mr and Mrs Semple, sold off to a Mrs McGregor 24 acres which formed the southern end of the estate. At the north western corner of the 24 acres lay the mansionhouse and policies, which included the two areas of ground, now called the Paddock and the Courtyard, with which this action is concerned. The service or access road, to which reference has already been made, ran approximately west to east, linking the main Strathaven/Hamilton road to the north westmost extremity of the 24 acres, which also formed the western extremity of the policies. For the purposes of this action, the important feature of the 1946 disposition was that it conveyed to Mrs McGregor "a joint and mutual right with us… and our successors as proprietors of our remaining lands of East Overton to the service or access road which leads from the main (Strathaven to Hamilton) Highway to the Mansion House of East Overton erected on the lands hereby disponed and also to our said remaining lands of East Overton which lie on or towards the north of the lands hereby disponed as said service or access road is delineated and shewn coloured blue, on the accompanying Ordnance Survey map". The solum of the service or access road formed part of the original estate, and was retained by the Trustees along with the northern part of the estate. So far as one can make out from the monochrome copy of the Ordnance Survey map attached to the copy of the 1946 disposition which was lodged as a production, the service or access road was shown to run from the main Strathaven/Hamilton road as far as the western extremity of the policies. On entering the policies the road divided, one branch running eastwards to form an access drive to the mansionhouse itself, terminating at a point immediately to the west of the mansionhouse, while the other branch ran roughly north-eastwards though the policies along their north western boundary to give access to the northern part of the estate which the Trustees retained.

  • In 1956 Mrs McGregor sold the mansionhouse and policies, including the Paddock and the Courtyard, to one Stanley Fred Smith. Also included in the sale was a strip of land which ran south-east from the mansionhouse to the main Strathaven/Glassford road, and contained a separate access drive between the house and that road. A right of access over the service or access road from the Strathaven/Hamilton road was also conveyed to Mr Smith in terms consistent with those contained in the 1946 disposition, as follows,

    • "a joint and mutual right with the proprietors of the remaining lands of East Overton belonging now or formerly to (the Trustees), to the service or access road which leads from the main (Strathaven to Hamilton) Highway to the said Mansionhouse of East Overton and also to the remaining lands of East Overton which lie on or towards the north of the lands hereby disponed."
  • In 1985 those "remaining lands of East Overton which lie on or towards the north of the lands hereby disponed", in other words the northern part of the estate retained by the Trustees, were sold, together with the solum of the service or access road to James Stobo and Sons. Following that transfer land certificate LAN12084 was issued in respect of those subjects. One of the matters in dispute in this case is whether the description "service or access road" means only the road between the main road and the western extremity of the policies, or includes the fork which runs eastwards from that extremity through the policies forming the access drive to the western side of the mansionhouse. That access drive is wholly within the subjects called the Courtyard.

  • In 1987 the mansionhouse and policies were divided up with a view to their development and it is the terms of the land certificates following on that division, and in particular the references in them to the joint and mutual right over the service or access road, which have created the difficulties which have led to this dispute. By 1987 the mansionhouse and policies, including the Paddock and the Courtyard, were in the ownership of one George Young. In about March 1987 he sold part of the policies called the Courtyard to a Mr and Mrs Walker, and on 11 March 1987 land certificate LAN 29185 was issued. The subjects covered by that certificate consisted of land immediately to the rear or north-west and west of the mansionhouse, and included the access drive leading from the western extremity of the policies to the west side of the mansionhouse to which I have already referred. On the plan annexed to this opinion the subjects consist of the area coloured red together with the access drive coloured blue, but exclude the area marked A, which only became part of the Courtyard at a later date. I refer to the drive as the access drive to distinguish it from the service or access road which is coloured brown on the plan, and lies outside the policies of the mansionhouse.

  • Certificate LAN 29185 also included in the title a right of access over the service or access road but purported to exclude the proprietor of East Overton House and ground from enjoyment of it, although the right had previously benefited the whole of the mansionhouse and policies. The entry read as follows:

    • "together with (1) a joint and mutual right with the proprietor(s) of East Overton House and ground and others, (but expressly excluding the said proprietor(s) so far as relating to pedestrian and vehicular access thereover), to the service or access road which runs from Hamilton road to the Mansionhouse of East Overton and is tinted brown on the title plan…".

    Although this part of the certificate seems to me to be oddly phrased, I conclude that its purpose was to reflect the intention of Mr Young, who at the time was retaining East Overton House and some ground, that the proprietor of East Overton House should not share in the right of access over the service or access road, but should gain access to his property from the Strathaven/Glassford road. Whether that intention was put into effect by the terms of the exclusion was not a matter on which I was addressed in debate and is not a matter on which I am prepared to form a concluded view as I shall explain later. It is significant that the right over the service or access road is said to be joint and mutual with the proprietor of the house and ground and others, indicating that it was envisaged that a third party or parties would share the right. The original LAN 29185 issued on 11 March 1987 was not a production in the case, and all that was available to me was a later version which was issued to the defenders on 9 October 1995. This later version of LAN29185, which I deal with later, relates to enlarged subjects, also called the Courtyard, which include the eastern section of the Paddock.

  • The next relevant land certificate is LAN 34236 which was issued on 15 September 1987, and related to subjects called East Overton House, which consisted of the main part of the mansionhouse, certain garden ground, and the strip of land joining the house to the Strathaven/Glassford Road, already referred to. Those subjects are coloured green on the plan accompanying this Opinion. In the Burdens Section of certificate LAN 34236 the disposition of the Courtyard by Mr Young to Mr and Mrs Walker, registered on 11 March 1987, is referred to as containing the following rights and burdens affecting the subjects, viz.:

    • "(1) A joint and mutual right with (Mr) Young and his successors and others, (but expressly excluding the proprietors of the subjects retained by said (Mr) Young and his successors so far as relating to pedestrian and vehicular access thereover), to the service or access road which runs from Hamilton road to the Mansionhouse of East Overton."

    While the purpose of this reference seems to me to have been to confirm the exclusion of East Overton House from enjoyment of the joint and mutual right over the service or access road, it is not entirely clear to me that it was either necessary or in conformity with section 6(1)(e) of the 1979 Act. That sub-paragraph provides for entries in the Register relating to "any enforceable real right pertaining to the interest (in land) or subsisting real burden or condition affecting this interest". The reference does not seem to me to fall within that description. Since it neither pertains to (in the sense of benefiting) nor affects (in the sense of burdening) the interest in question, namely East Overton House.

  • On 16 September 1987, the day after the registration of the title to East Overton House, land certificate LAN 34284 was issued, vesting Mr and Mrs Walker in subjects called the Paddock. In the plan annexed to this opinion those subjects are covered by the area coloured yellow together with the area coloured red which is marked "A". This certificate was issued on registration of a disposition by Mr Young in favour of Mr and Mrs Walker. It also vested the Walkers as owners of the Paddock, in the now familiar right to the service or access road in the following terms:

    • "a joint and mutual right with the said proprietor of East Overton House (but expressly excluding the said proprietor and his successors so far as relating to pedestrian and vehicular access thereover) to the service or access road which runs from Hamilton road to the Mansion House of East Overton."

    It is this certificate upon which counsel for the pursuers relied for his contention that the whole of the Paddock then disponed was benefited by the right of access conferred. This contention, as I understood it, proceeded upon the view that the access right granted extended not only over the service or access road but also over the access drive marked in blue which continued from the western extremity of the policies to the west side of the mansionhouse.

  • The defenders, on the other hand, argued that Mr Young, at the time when he granted the disposition of the Paddock from which certificate LAN 34284 flowed, had, when he conveyed away East Overton House and ground, already divested himself of any right of access over the service or access road in relation to his remaining property, (see reference to land certificate LAN 29185). That remaining property included the Paddock, since it was still in his ownership when LAN 29185 was issued. Mr Young, it was argued, was therefore purporting to convey a right to the new proprietors of the Paddock to which he had no title.

  • On 29 April 1992, Mr and Mrs Walker, who were now proprietors of both the Courtyard and the Paddock, executed a disposition in favour of the pursuers of the western part of the Paddock marked yellow on the plan annexed to this Opinion. That western part of the original Paddock is now called the Paddock. The disposition also conveyed "a joint and mutual right with the proprietor of East Overton House to the service or access road which runs from Hamilton road to the Mansion House of East Overton." An application for first registration of this transfer was made on 14 May 1992. The application was allocated title number LAN 85116, but remains pending and no Title Sheet or land certificate has been made up. The pursuer avers that certificate LAN 34284 which was issued on the transfer to Mr and Mrs Walker of the original Paddock, will be closed when the application allocated the number LAN 85116 is processed, since there will be no interest remaining under LAN 34824, the other part of the original Paddock, marked "A", now having been subsumed into the Courtyard.

  • In May 1992 Mr and Mrs Walker sold the Courtyard together with the eastern part of the Paddock to a Mr and Mrs Fletcher. Following the registration of that transfer an updated version of certificate LAN 29185 was issued covering the subjects transferred. Those subjects are now called the Courtyard.

  • The Courtyard, with the eastern part of the Paddock, was subsequently sold to the defenders by disposition by Mr and Mrs Fletcher dated 24 September 1995. Following upon that transfer an updated certificate LAN 29185 was issued on 9 October 1995. The subjects vested in the defenders by that certificate include the same joint and mutual right to the service or access road, as was included in the original LAN 29185 dated 11 March 1987.

  • The pursuers aver that they are, as proprietors of the western part of the Paddock, and by virtue of the terms of LAN 34284 and the disposition in their favour, entitled by express grant to a servitude right to take pedestrian and vehicular access to their property over the service or access road. They also aver that they are entitled to a servitude right of pedestrian and vehicular access over so much of the area of ground within certificate LAN 29185 described as the access drive and coloured blue on the plan appended to this Opinion as shall be necessary to enable them to take access to the Paddock by way of an entrance of reasonable dimensions and reasonably situated.

  • The pursuers have an alternative case in the event that they are found not to be entitled by express grant to a servitude right of pedestrian and vehicular access over the service or access road and the access drive. They aver that in that event, they are entitled to such right by implication. They aver that when the Paddock and Courtyard were in the single ownership of the Walkers, the service or access road and the access drive were used to gain access to the Paddock. The defenders take access by that route to the eastern part of the Paddock which now forms part of the Courtyard, as did their immediate predecessors. They also aver that the sale and conveyance of the western part of the Paddock to the pursuers was carried out for the purpose of its being developed residentially, and that the access in question is reasonably necessary for the comfortable enjoyment of those subjects.

  • In seeking dismissal of the pursuers’ first conclusion, counsel for the defenders submitted that it was legitimate to look at extrinsic evidence in order to determine the proper interpretation of the land certificates. In particular, it was legitimate to look at the disposition of the Courtyard by Mr Young in favour of Mr and Mrs Walker dated 9 March 1987 in order to establish what land certificate LAN 29185 meant. In that disposition the exclusion of the grantor and his successors from the right of access over the service or access road was expressed differently from the way in which it was expressed in the certificate. In the disposition, the exclusion related to the grantor and his successors "as proprietors of the subjects retained by him", while in the certificate the exclusion related to "the proprietors of East Overton House and grounds". "East Overton House and grounds" in the certificate should therefore be interpreted as meaning all the subjects retained by Mr Young as at 9 March 1987. Those subjects included the Paddock. When construing certificate LAN 34284, relating to the original Paddock, it was necessary to ascertain what Mr Young owned when he disponed those subjects to Mr and Mrs Walker in September 1987. Mr Young had, in the disposition of the Courtyard in favour of the Walkers which led to certificate LAN 29185, given away his right of access over the service or access road, and so was not in a position to grant any right of access to the pursuers’ predecessors as disponees of the Paddock. In these circumstances access to the Paddock as it now is should be taken from the Strathaven/Glassford road along the access drive on the strip of land joining the mansionhouse to that road.

  • Counsel for the pursuers argued that the land certificates could only be construed as entitling the pursuer to access to the west part of the Paddock over both the service or access road and the access drive. The access right vested by certificate LAN 34284 was described as a right "to the service or access road from Hamilton road to the mansionhouse of East Overton". Certificate LAN 34284, which was unambiguous, was the definitive measure of the right conferred, and it was incompetent to look behind it. The defenders’ remedy, if they had one, was to seek to rectify the certificate or certificates under section 9 of the Act.

  • If, contrary to his submissions, it was competent to look at extrinsic evidence, the following should be taken into account. Mr and Mrs Walker executed the disposition of the western part of the Paddock in favour of the pursuers on 29 April 1992. According to the pursuers’ averment, it was not until 3 June 1992 that the transfer of the Courtyard, including the eastern part of the Paddock, by Mr and Mrs Walker to Mr and Mrs Fletcher was registered. In these circumstances, when the right over the service or access road was disponed by the Walkers to the pursuers, the Walkers were still the owners of the solum of the access drive.

  • Counsel argued further that he was entitled to decree de plano in terms of his first conclusion. The terms of certificate LAN 34284 gave Mr and Mrs Walker a right of access which benefited the entire Paddock. Since there was only point contact between the service or access road and the western part of the Paddock, both the pursuers and the defenders required to traverse the blue access drive in order to gain access to their respective parts of the Paddock.

  • There is a dispute between the parties as to the extent of the service or access road over which the joint and mutual right is enjoyed. It is clear that the joint and mutual right relates only to the service or access road that runs between the Strathaven/Hamilton road and the western extremity of the policies. The right was originally created by the 1946 disposition in favour of Mrs McGregor, and the plan attached to that disposition shows that the service or access road lay outside the land conveyed to her. It is obvious that there was no necessity for a grant of a right of access over the access drive, which now lies within the Courtyard subjects, since that drive formed part of the property conveyed to Mrs McGregor. It was only necessary to grant a right of access over subjects in the ownership of others. In subsequent dispositions and land certificates the description of the road has remained unchanged and it is accordingly clear that in all the documents referred to the service or access road means the road between the main Strathaven/Hamilton road and the western extremity of the policies.

  • It follows that I require to consider the question of the pursuers’ right over the service or access road separately from the question of their right over the access drive. Dealing firstly with the service or access road I turn immediately to consider the terms of the land certificates which were issued on the division of the mansionhouse and policies. I do so because the purpose of the Land Registration (Scotland) Act 1979 was to provide a title guaranteed to be valid by an indemnity from the Keeper of the Register. The intention was that the Register should be the only measure of the title and that it should contain all the information relevant to the particular heritable interest.

  • I consider that the correct approach is to look at the three titles, LAN 29185, LAN 34236 and LAN 34284 together, as the manifestation in the Register of the linked transactions which brought about the division of the mansionhouse and policies. The entries in the Register represent the definitive measure of the parties’ rights. When this is done the terms of the titles, at least so far as a right over the service or access road is concerned, are clear and unambiguous. In the absence of any conclusion for reduction or rectification of the titles, there is no justification for going behind the terms of these titles. To do so would defeat the purpose of the 1979 Act, and no argument advanced on behalf of the defenders persuaded me otherwise. What is clear from the three titles is that the Walkers were vested in rights of access over the service or access road as proprietors of both the Courtyard and the Paddock as they were then constituted. In these circumstances, the Walkers were free to transfer those rights to the disponees of both areas of land, and they duly did so when they disponed the western part of the Paddock to the pursuers, and the Courtyard and eastern part of the Paddock to the Fletchers in 1992. In my opinion, rights over the service or access road were validly transferred to the pursuers and to the Fletchers and their respective titles to those rights should be registered.

  • I reject the defenders’ argument that Mr Young had disabled himself from transferring any right over the service or access road to the pursuers along with the Paddock because he had previously excluded himself and his successors as proprietors of East Overton House from that right. That argument depends for its force upon the terms of the exclusion in the disposition of the Courtyard by Mr Young in favour of the Walkers. Since I take the view that it is the registered title that one must look at in order to ascertain the rights of the parties, I do not consider that the terms of that disposition assist the defenders. What is important is that certificate LAN 34284 clearly vests a right over the service or access road in the proprietors of the Paddock.

  • I should also say that, in the absence of any argument on the point, I am not prepared to assume that the exclusion from the right of access of Mr Young and his successors as proprietors of East Overton House and ground (or as they are variously described in the dispositions and land certificates) was effective in law against Mr Young’s successors. Whether what was done was sufficient to eliminate for all time coming, in relation to part of the subjects, a servitude which had benefited the whole of the mansionhouse and policies, is a matter on which I would require to hear full argument.

  • I turn now to the question of the right of the pursuer over the access drive. In my opinion, guidance as to the resolution of this problem may be obtained from the Opinion of the Court in Bowers v Kennedy 2000 S.C. 555, which was cited by counsel for the defenders. In the course of the Opinion delivered by Lord President Rodger the following passage from the opinion of Lord President Inglis in Walton Brothers v The Magistrates of Glasgow (1876) 3 R. 1130 was quoted:

    • "Nothing is better settled than that the conveyance of a piece of property implies a right of access to it. No one can possess a piece of ground without having a right of ish and entry, and the way that is to be obtained if the conveyance is silent is just the existing way."

    In the opinion in Bowers the Court reviewed passages from the Institutional Writers which recognised the right of an owner of property to obtain access to it. At p.561D the effect of those passages was summarised in this way:

    "In summary, the Institutional Writers proceed upon the view that it is of the very essence of a right of ownership of land that the owner should be able to have possession of it and that this implies a right to enter and to leave it. The right to free ish and entry, and the resulting right of access are ‘necessary concomitant(s) of property’ and therefore, like the property itself, they do not prescribe."

    The precise nature of the right was explained and distinguished from a right of servitude in the following way:

    "The fact of the matter is that the doctrine of the implied grant or reservation of servitudes so far as applied to ways of necessity, is a means – fiction, if you will – by which the law rationalises the operation of the rule that the owner of an enclave has a right to the necessary access for the enjoyment of his property. In other words, in such cases ‘servitudes’ of this kind are in substance a manifestation of the right of access which the owner of land must have, if he is to enjoy the possession of his land in which the law accordingly implied."

    The Court went on to confirm the view of Lord President Inglis in Walton Brothers that when a conveyance of land which has no other access says nothing about the access, the access is to be obtained by the existing way, that is by the route which provided access before the properties were split.

  • As I have already indicated, I take the view that the three transactions by which the mansionhouse and policies were divided up by Mr Young in 1987 fall to be regarded as linked parts of a single overall scheme. The titles which followed upon the division provided that access to East Overton House and ground was to be taken from the Glassford road, while access to the Courtyard and the Paddock was to be taken from the Hamilton road. Since 1987 therefore there has been an established access to the Paddock from Hamilton road. In these circumstances, applying the principle enunciated in Bowers, the proprietors of the Paddock, whether in its original or present form, were entitled to take access over the access drive coloured blue, in so far as was necessary to enable them to gain access to their land.

  • I therefore conclude that the pursuers are entitled to a servitude right of vehicular and pedestrian access over the service or access road and also over the access drive coloured blue. Unfortunately the pursuers’ pleadings are not sufficiently clear as to the layout and features of the two adjacent properties, the Paddock and the Courtyard, to enable me to frame an interlocutor. In particular, it was not made clear to me precisely where, in relation to the boundary of the Paddock, the service or access road ended and the access drive began, so that I am unable to determine the extent to which the proprietors of the Paddock, as it now is, require to encroach upon the access drive. There is also a reference in the second part of the first conclusion to a building called the Courtyard which was not explained either in submissions or in the pleadings. In these circumstances, I shall put the case out By Order so that parties may consider what further submissions they may wish to make in the light of the conclusion I have reached. Since this case essentially revolves round the terms of probative documents, it would in my view be regrettable if it, or at least the first conclusion, could not be determined without a proof.

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