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

An express servitude of vehicular access may carry an ancillary right to park on the servient tenement where that right is reasonably necessary for the convenient and comfortable enjoyment of the granted access and the dominant property. The grant is construed in the circumstances existing when it was made, including uses of the dominant tenement which the parties could then reasonably contemplate.

The right remains limited to parking reasonably incidental to the access. Its exercise must be civiliter, so that it places no undue burden on the servient proprietor. Excluding the servient proprietor from particular uses of part of the land does not, by itself, prevent recognition of the ancillary right.

The owners of Da Store held an express servitude of pedestrian and vehicular access across neighbouring land from the public road. Vehicles could not enter or park on Da Store because the property lay below a steep escarpment. The servient owners accepted ancillary rights to stop, turn, load and unload vehicles, but disputed any right to park.

The sheriff granted declarator and permanent interdict. By a majority, the Extra Division refused the defenders’ appeal and declared that the access included a right to park vehicles reasonably incidental to its enjoyment: [2005] ScotCS CSIH_14; 2005 SLT 225.

The central questions were whether parking could constitute a right ancillary to vehicular access, whether such a right arose in the particular circumstances, how the principle of civiliter controlled its exercise, and whether permanent interdict was appropriate.

1. The appeal was dismissed unanimously and the Extra Division’s interlocutor was adhered to. Lord Hope delivered the principal speech. Lord Scott and Lord Neuberger reached the same result by substantially similar reasoning. Lord Mance agreed with Lord Hope. Lord Rodger concurred in the result, although with considerable hesitation.

2. Per Lord Hope, the extent of an express servitude and its ancillary rights must be determined from the grant construed against the circumstances observable when it was made. The court may also consider future uses of the dominant tenement which the parties could then reasonably have contemplated. Actual exercise of every claimed ancillary right at the date of grant is unnecessary.

3. Per Lord Hope and Lord Neuberger, an express servitude carries rights reasonably necessary for its exercise and enjoyment. The appropriate balance is whether the ancillary right is necessary for the convenient and comfortable enjoyment of the servitude. Necessity prevents the imposition of an uncovenanted burden, while reasonable or comfortable enjoyment avoids an unrealistically strict standard.

4. On the sheriff’s findings and the unusual topography, the vehicular access carried an ancillary right to park near Da Store. Vehicles could not enter the dominant tenement. Without nearby parking, residents would have to return about 150 yards up a significantly steep route in exposed country after unloading. Construing the grant to exclude parking would substantially defeat the practical benefit of vehicular access. Lord Rodger accepted this conclusion because it was unsafe to reject the sheriff’s assessment, but cautioned that parking should not readily be implied merely because the dominant land lacks parking.

5. Per Lord Hope and Lord Scott, partial exclusion of the servient proprietor from using land does not by itself make such a right legally objectionable. Lord Scott considered a parking servitude valid provided that the servient proprietor retained possession and, subject to reasonable exercise of the right, control. The House did not finally determine the full scope of a free-standing servitude of parking or the English “ouster” principle.

6. The parking right was appurtenant to Da Store and extended only to vehicles connected with its permitted use. It was not a right to store or warehouse vehicles. Its exercise was governed by civiliter and could not impose an undue burden on the servient land. The House considered that questions of number, duration and location should ordinarily be resolved through reasonable cooperation rather than rigid advance limits.

7. Per Lord Hope, permanent interdict was justified by the prolonged dispute and previous interference with the servitude. Its reference to reasonable exercise gave sufficiently clear notice, while allowing practical details to vary over time.

1. House of Lords: The defenders’ appeal was dismissed unanimously and the Extra Division’s interlocutor was adhered to: [2007] UKHL 42.
2. Court of Session, Extra Division: By a majority, the court refused the defenders’ appeal, amended the declarator to define the accessory rights, and adhered to the permanent interdict: [2005] ScotCS CSIH_14; 2005 SLT 225.
3. Sheriff Court at Lerwick: The sheriff declared that the owners of Da Store were entitled to park vehicles on the servient tenement as an accessory to the right of access and granted permanent interdict against interference with reasonable exercise of the rights.