Having a suitable right of access is an essential part of ownership or use of land and property. It is, however, very common for land or property to be owned without having ownership of all or any of the access route to it, and the law relating to servitudes has developed over the centuries to provide a means for appropriate access rights to be obtained and enjoyed in such circumstances.
A servitude right of access involves allowing the owner of one piece of land (the dominant tenement) to exercise access rights over another piece of land not in his ownership (the servient tenement). The common law provides many rules governing the way in which servitudes may be exercised and what the owner of the servient tenement may and may not do in relation to the land over which the right is exercised, as well as what he must or must not do when his land is the subject of a servitude right of access.
As with many other things in life however the position is not always clear-cut, and there are regular instances where the parties either do too much, or not enough, to observe their legal duties or obligations. This was the case in the recent sheriff court action of Latham v Hunt, which came before the Sheriff principal for appeal last month, and in which the Sheriff principal upheld the decision of the sheriff.
Sticks and stones
The case concerned a dispute between neighbours relating to the use of an access road. Mr and Mrs Latham, the owners of Mid Balchraggan House in Drumnadrochit have a servitude right of pedestrian and vehicular access to their property over a short stretch of road which runs through Mr Hunt's property, Mid Balchraggan Cottage. There is a gate at each end of the access road, which is on a steep slope. Both gates are to be kept shut, and opened only to let vehicles pass through.
Neighbourly relations appear not to have been particularly congenial. First, Mr Hunt laid a number of rocks on either side of the access road, making it difficult for cars to be driven along the road. Indeed, on one occasion when, after an altercation between the parties the police were called, the police car hit against the rocks when trying to navigate its way along the access road.
The issue for Mr Hunt appears to have been the speed at which he maintains his neighbours and their visitors would drive along the stretch of road. When the Lathams obtained an interdict to prevent obstruction of the road, it was in exchange for an undertaking that they would not drive along the road at a speed of more than 5 mph.
Several months later however three speed bumps were installed on the road. These were of such a height that the underside of the Lathams' car scraped along them when driving over them. A further two speed bumps were installed a few weeks later which also caused jolting and discomfort to the drivers and their passengers.
The sheriff decided that the use or convenience of the servitude right to which Mr and Mrs Latham were entitled had been unlawfully diminished, both by the placing of rocks on the road and by the continued presence of the speed bumps built by Mr Hunt, and he instructed that Mr Hunt should desist from any action that would impede, restrict or hinder the pedestrian or vehicular access over the access road, whether that be by placing stones, or other means.
Are sleeping policemen outlawed?
Does this mean that speed bumps (or sleeping policemen as they are colloquially known) can never be installed where the roadway is subject to a servitude? As with many aspects of the law, it depends. Where they constitute such a material restriction on the access, as to impair the enjoyment of the right by those entitled to exercise it, then it would seem that their installation could be challenged on this basis. Much of the argument in this aspect of the case revolved around where the burden of proof lay – was it for the owner of the servient tenement to prove that those using the access road had been using excessive speed, in order to justify the erection of traffic calming measures, or did those road users have to establish the fact of, and the extent to which their enjoyment of the right was impaired as a consequence of the installation of speed bumps and rocks?
Because, in his submissions, Mr Hunt had repeatedly contended that his actions were necessitated as a result of the excessive speeds used by those using the access road, the court considered that it was correct for him to have to demonstrate that the action he had taken, which amounted to interference with the rights of those road users, had been necessary for him to properly safeguard the use and enjoyment of his own property.
What constitutes material interference?
The three points to consider in these circumstances were:
Whether something has occurred which restricts the enjoyment of the servitude right (i.e. whether the speed bumps restrict the enjoyment of the access right;
If so, whether the restriction is however so small and inconsequential that it could not be said to have impaired the enjoyment of the right of access; and
Whether the restriction was required by the owner of the servient tenement to allow him the beneficial use and protection of his own property.
While the initial onus of proving that a servitude right of access has been impeded lies with the dominant proprietor, where interference has been shown to have taken place, it is then up to the servient proprietor to show that what he has done is necessary for the proper enjoyment of his property, and that it is an immaterial interference with the rights of the dominant proprietor.
In this case, since the installation of speed bumps was clearly found to be a material interference which had injured the enjoyment of the right of access, it was then for the owner of the road to show that the neighbours' use of excessive speed on the road, as contended, necessitated the action taken. Although many remarks to this effect had been made, it seems that little if any actual evidence of this was produced.
Exercise of servitude rights
The general principle is that a dominant proprietor must exercise his servitude rights civiliter, which means that he must cause the minimum of disturbance or inconvenience to the owners of the servient tenement.
From the point of view of the servient proprietor, his role is a passive one – to suffer the exercise of the servitude, but without any obligation to maintain the route or take positive action of any kind to facilitate the grant beyond its terms, but to do nothing that would prevent the proper exercise of the servitude.
How often it is however that these simple roles start to unravel in the actual performance when day to day irritations intervene. The owner of land that is subject to a servitude should ensure that he is clear about the extent to which that limits his actions or activities on the affected part of the land, while the party entitled to exercise the right should likewise ensure that he understands the extent of his entitlement to the right and any limitations or duties that attach to it.
The full text of the Sheriff principal's judgement in Latham v Hunt is available from the Scottish Courts website at https://www.scotcourts.gov.uk