Moncrieff & Anor v. Jamieson & Ors (Scotland)

The House of Lords held that an express servitude (right of access) may carry with it accessory rights necessary for the reasonable and comfortable enjoyment of the dominant tenement. Applying that principle to the unusual topography and factual findings, the court concluded that the grant of a vehicular right of access to Da Store included an ancillary right to park such vehicles on the servient tenement so far as reasonably incidental to the enjoyment of the access. The court considered and applied the civiliter principle to limit the manner and extent of exercise of the accessory right and examined (and in substance rejected as decisive) the so-called "ouster" objection that the parking right would destroy the servient owner's ownership. The House dismissed the appeal and upheld the declarator and permanent interdict granted below.

The pursuers (dominant proprietors) sought a declarator that, as incidents of an express servitude (a right of access granted in a 1973 disposition), they and their successors had a right to park vehicles on neighbouring land (the servient tenement) and a permanent interdict restraining interference with those rights. The sheriff court found (after evidence and a site visit) that because Da Store lay below a steep escarpment and vehicles could not be driven onto the dominant tenement, the right of vehicular access necessarily included rights to turn, to load and unload and to park such number of vehicles as were reasonably necessary; he granted declarator and permanent interdict. The Extra Division of the Court of Session affirmed (2005 SLT 225). The appellants appealed to the House of Lords.

Issues framed by the court included: (i) whether a right to park can exist as an accessory to a servitude of vehicular access (or as a servitude in its own right), (ii) whether, on the facts of this case, such a parking right was included in the 1973 grant, (iii) the application of the civiliter principle, (iv) the "ouster" objection that recognition of parking would deprive the servient owner of reasonable use, and (v) the necessity and precision of a permanent interdict.

The Lords analysed authority on implied and ancillary rights to easements/servitudes (including Ewart v Cochrane, Jones v Pritchard and Pwllbach Colliery Co Ltd v Woodman) and considered English and Scottish decisions on parking and storage rights. The majority concluded (having regard to the sheriff's factual findings about the topography, the impossibility of driving or parking on the dominant tenement, the position of the closest alternative parking and the parties' historical arrangements) that a parking right was reasonably necessary for the comfortable enjoyment of the right of vehicular access and that it could be framed so as not to oust the servient owner's possession. The court therefore dismissed the appeal, upheld the accessory parking right limited to what was reasonably incidental, and affirmed the permanent interdict as appropriate and enforceable.

Appeal dismissed. The House held that, on the facts found by the sheriff and given the unusual topography (no possibility of parking on the dominant tenement and a steep, exposed route to alternative parking), a right to park vehicles on the servient tenement was ancillary to the express servitude of vehicular access and was implied as necessary for the comfortable enjoyment of the dominant tenement; the right is limited by the civiliter principle and does not amount to an unlawful ouster of the servient owner's possession. The Extra Division's declarator and the permanent interdict were therefore upheld.

Sheriff Court at Lerwick: interlocutor (7 July 2003) granting declarator of accessory parking rights and permanent interdict. Court of Session, Extra Division: appeal refused (4 February 2005), reported 2005 SLT 225. House of Lords: appeal dismissed [2007] UKHL 42.