by Alasdair Peterson, Lecturer in Private Law, University of Edinburgh
Introduction
In a recent case, AC & IC Fraser & Son Limited v Munro [2024] SAC (Civ) 41, the Sheriff Appeal Court was faced with two issues relating to the law of servitudes: firstly, whether a landowner’s inaction in response to its neighbour’s use of a diverted route had led, through acquiescence, to a variation in the route of a vehicular right of access; and, secondly, whether an additional pedestrian right of access had been established through positive prescription despite the landowner having permitted the neighbour’s predecessor to use the route over which a servitude was now claimed.
Although these issues are doctrinally distinct, a common theme emerges from the court’s deliberations: how best to characterise a landowner’s response (or lack of response) to a neighbour using their land in a manner apparently unsupported by any existing right of servitude.
In its opinion, delivered by Sheriff Principal Pyle, the court refers to several different descriptions which could be applied to a landowner’s response (or, again, lack of response) in this context – namely “acquiescence”, “permission”, and “tolerance”. As will be seen, although these descriptions overlap in their everyday meaning, their legal meanings are substantively different. Deciding which description best characterises a landowner’s behaviour will therefore be significant when determining whether land has been burdened with a praedial servitude or remains free.
Facts and Legal Issues[1]
The case concerned a filling station forecourt in Contin, Ross-shire. Prior to its acquisition by the pursuer’s predecessor, the filling station had formed part of a larger plot belonging to the defender’s father. The retained property, known as “Smithy Croft”, lay to the east of the filling station. It had passed to the defender in 2011.
When the filling station was first split off as a separate property, a vehicular right of access had been reserved in favour of Smithy Croft. Its route ran along the filling station’s southern border to its western boundary, where it was intended to connect with a public road (the A835). Significantly, however, the intended exit point was blocked by a stone retaining wall, which remained in place throughout subsequent proceedings. From 2009 or 2011 onwards, the defender had created a gravel track, which exited Smithy Croft at the envisaged point before deviating northwards and exiting onto the public road at a point where there was no wall. The defender subsequently took vehicular access to Smithy Croft along this new route. He also wrote, through his agents, to the then proprietor of the filling station, requesting confirmation that the diverted route was “correct and not as shown in the title deeds”.[2] The pursuer’s only reply was an acknowledgement of safe receipt.
In addition, before the two properties had been split, the defender’s father had installed a path and steps which led from Smithy Croft (on higher ground) down to the filling station. From these steps, the father had taken pedestrian access across the filling station forecourt and onto the public road. Significantly, at first instance, the Sheriff (Frazer) held that the filling station’s new proprietor had “permitted” the father to continue using this route after the split. The defender then continued this use following his acquisition of Smithy Croft in 2011.
In essence, two issues were in dispute. Firstly, did a vehicular right of access exist over the gravel track, despite it differing from the route delineated in the split-off disposition? And, secondly, had a pedestrian right of access been constituted over the filling station forecourt by positive prescription? At first instance, the Sheriff decided there was no vehicular access over the diverted route but that a servitude of pedestrian access had, in fact, been established across the forecourt.
On appeal, the Sheriff Appeal Court found against the defender on both points. In doing so, the court emphasised (i) the high bar which must be cleared before a landowner’s inaction will be characterised as “acquiescence”; and (ii) the legal consequences which must follow when a landowner’s communications with their neighbour are characterised as “permission” that an ongoing use can continue. In addition, the court cautioned (briefly) against inappropriate use of the term “tolerance” where a reference to “permission” is already sufficiently clear.[3]
“Acquiescence”
On the first issue, the defender argued that, since the original vehicular access route had never been opened up, any right to use the intended exit point had prescribed negatively.[4] Furthermore, the defender’s use of the alternative route “with the knowledge and acquiescence” of the pursuer was intended to avoid damaging the existing wall and to allow cars to be parked beside it.[5] In other words, the variation of the access route had been mutual – “it suited everybody”.[6]
By contrast, the pursuer argued that the authorities were clear: “acquiescence” is a doctrine of “last resort” in the law of servitudes and will only be entertained where a dominant proprietor has carried out significant works on the servient tenement at great costs and with the full knowledge of the servient proprietor.[7] In any event, the pursuer was unconcerned about any works which the defender would have to carry out to make the original route useable. Rather, the pursuer’s main priority was ensuring that, since the diverted route passed over an underground petrol storage tank, it would not be burdened by a praedial servitude.[8]
Having considered parties’ arguments, the court began by reviewing existing case law on the creation of servitudes by acquiescence.[9] In doing so, it identified a persistent theme: although, “in extreme circumstances”, the law will allow servitudes to be created otherwise than by agreement, these circumstances do “require to be extreme” in light of the publicity and registration requirements that apply to rights in land.[10] As such, mere “toleration” by a landowner of a neighbour’s use of their land will not “of itself create a right enforceable by and against singular successors (unless the latter are put on notice)”.[11]
In any event, although the pursuers had sought to characterise the defender’s use of the alternative route as an attempt to create a new servitude by acquiescence, the court disagreed. Rather, it was clear that the defender was attempting to vary the route of the existing servitude.[12] Moreover, since the wall had been in place before the servitude was created, it could not be viewed as an attempted obstruction on the part of the pursuer. In this regard, it differed from other cases (e.g. Davidson v Thomson[13] and Hozier v Hawthorne[14]) where a dominant proprietor – or, in Hozier, the public – had acquiesced in the variation of a route through failing to object to works which rendered the original route unusable.[15] By contrast, in this case, all that the defender could ultimately point to as evidence of acquiescence was the fact that the pursuer had “tolerated” the use of the diverted route for some years.[16] While this was not in dispute, the court emphasised that the real question was “whether by acquiescence a variation of a praedial servitude [had] occurred – a much higher test”.[17]
What then is the test for varying a servitude by acquiescence on the part of the servient proprietor? On this point, the court was less explicit, preferring to note factors which were insufficient to indicate that the pursuer’s inaction (i.e. “toleration”) had reached the level of acquiescence. In particular, the letter sent to the pursuer’s predecessor was insufficient, since it only evidenced the recipient’s awareness of the defender’s behaviour.[18] Similarly, the fact that the diverted route was more convenient for the defender, and was uncontested for several years, did not necessarily mean that variation would be “a sensible solution” for the pursuer – again, as the court emphasised, “that is not the legal test for effective variation of a praedial servitude”.[19] As to what is the legal (and higher) test for variation, it appears we must rely on the court’s preference for the pursuer’s submissions – particularly in light of the cases which the court distinguished from the present one.[20] In effect, either the dominant proprietor’s use of the diverted route must be facilitated by serious and costly works, which the servient proprietor knows have been carried out in reliance on their acquiescence or, more aptly for this scenario, the dominant proprietor’s use of the diverted route must be because “acts of the servient proprietor have rendered the original route impassable”.[21] An express confirmation of these points by the court would, however, have been welcome.
“Permission” and “Tolerance”
On the second issue, of prescriptive acquisition of a pedestrian right of access, the court found itself in the slightly unusual position of overturning the Sheriff’s decision (that such a right had been established) on the basis of his own findings in fact (that the pursuer’s predecessor had “permitted” the defender’s father to continue using the route after the properties were split).
As the pursuer argued, and the court agreed, it is a well-established point that, where a landowner has given permission for a neighbour to take access across their land, any subsequent use of that route by the neighbour will not be considered possession “as (if) of right” for the purpose of establishing a prescriptive servitude.[22] Faced with the weight of authority, the defender was therefore left to argue that, although the Sheriff had used the term “permitted”, any communications between the parties’ predecessors had really been a matter of “mere facilitation” with a view to the pursuer’s predecessors not taking any steps to prevent access being taken.[23] In other words, any inactivity on the part of the pursuer and its predecessors was really (in a non-technical sense) acquiescence in the defender’s assertion of a right.
The court quickly rejected this argument, noting that, if this was the defender’s position, they should have moved for an amendment to the Sheriff’s findings in fact. As it stood, the court was required to “proceed on the basis of the plain meaning of the word”.[24] Moreover, the rule that permission prevents prescription rests on a solid policy justification: where a landowner understands their neighbour’s behaviour to be referable to an agreement between them, the landowner is entitled to sit back and allow it to continue, secure in the knowledge that nothing further is required to prevent that use ripening into a praedial servitude.[25] Any cases relied on by the defender which suggested that use referable to an agreement could, over time, result in the establishment of a real right (e.g. Aberdeen City Council v Wanchoo[26] and Rome v Hope Johnstone[27]) were distinguishable on their own peculiar facts.[28]
Having dealt with the defender’s argument, the court concluded by pushing back on the pursuer’s proposal to amend the relevant finding in fact to refer to the giving of “specific permission as a matter of tolerance”.[29] The pursuer’s motivation appears to have been to put beyond doubt the referability of the defender’s behaviour to the pursuer’s grant of permission. However, the court (correctly) regarded the proposed amendment as unnecessary and, in fact, unhelpful. As the court noted, “tolerance” in this context is typically used to refer to situations where a landowner has not intervened to stop a neighbour’s use of their land but this inaction is attributed to good neighbourliness. In such cases, the neighbour’s behaviour is, in turn, characterised as being dependent on the landowner’s forbearance rather than as an assertion of right. As such, using the term “tolerance” with reference to an active grant of permission “muddies the waters”.[30]
On this last point, the court’s concern for taxonomic and terminological precision is welcome. It could, however, have gone further. As the present author has argued elsewhere, the invocation of “tolerance” to justify the non-running of prescription is inherently unhelpful. As demonstrated by the pursuer’s proposed amendment, it confuses two different reasons for possession not being “as (if) of right”.[31] Where a neighbour’s use of a route has been actively “permitted” by the landowner, possession is already referable to that permission: it therefore needs no further protection and the landowner has no reason to think that prescription may be running. By contrast, where a landowner is found to have “tolerated” low levels of use by their neighbour, the real reason for prescription not running is simply that the use is not frequent or regular enough to bring home to the landowner that a right is being asserted. In this regard, a landowner’s passive “tolerance” of their neighbour’s behaviour is, on its own, as irrelevant in prescription cases as it is in acquiescence cases. Rather, in both scenarios, the proper characterisation and consequences of the landowner’s inaction are determined by whether external factors exist to justify the land being burdened with a servitude. In acquiescence cases, it is the landowner’s inaction in the face of serious and costly works that renders it unfair for the landowner to now dispute the existence of a right. This, in turn, justifies the law’s characterisation of that inaction as “acquiescence” and leads to the creation or variation of a servitude. In prescription cases, it is the landowner’s inaction in the face of sufficient use by their neighbour, over the full prescriptive period, to bring home to the landowner that a right is being asserted. This justifies the conclusion that the neighbour’s behaviour is attributable not to the landowner’s tolerance but to the exercise of the claimed prescriptive servitude. The landowner’s “tolerance” is, in both cases, not a determining factor in itself.
Of course, given the Sheriff’s finding that the use of the pedestrian access had been permitted, it was not necessary for the court to set forth a positive account of what is meant by “tolerance” in the context of prescriptive servitudes. In any event, however, a more careful and precise approach to terminology in this area is to be encouraged and something which will hopefully be picked up in future decisions by courts at every level.[32]
Conclusion
On the whole, the court’s reasoning in AC & IC Fraser & Son Limited v Munro [2024] SAC (Civ) 41 is helpful in reiterating (i) that circumstances must be exceptional before a servitude will be varied as a result of acquiescence and (ii) that any use of an access route which is referable to the landowner’s permission cannot lead to the establishment of a prescriptive servitude. While the court could have gone further on certain points, for example in setting out a positive account of the relevant test for establishing acquiescence, its decision on both issues is in keeping with existing authorities and should go some way to providing further certainty in this practically important area.
[1] AC & IC Fraser & Son Limited v Munro [2024] SAC (Civ) 41 (“AC & IC Fraser”) at paras [1] to [5].
[2] Ibid at para [4], finding 16.
[3] On this point, cf. A Peterson, Prescriptive Servitudes (2020), paras 8-16 to 8-20.
[4] AC & IC Fraser at paras [8] and [21].
[5] Ibid at para [8].
[6] Ibid.
[7] Ibid at para [9], citing inter alia DJ Cusine & RRM Paisley, Servitudes and Rights of Way (1998), para 11.37; GJ Bell, Principles of the Law of Scotland (10th edn, 1899, W Guthrie (ed)), § 946; EC Reid & JWG Blackie, Personal Bar (2006), para 6.60; and Robson v Chalmers Property Investment Company 1965 SLT 381 at 387 per Lord Kissen.
[8] AC & IC Fraser at paras [10] and [11].
[9] Ibid at para [13] to [16], particularly Moncrieff v Jamieson 2005 1 SC 281 at para 27 per Lord Marnoch and para 83 per Lord Hamilton.
[10] AC & IC Fraser at para [16].
[11] Ibid.
[12] Ibid at para [17].
[13] Davidson v Thomson (1890) 17R 287.
[14] Hozier v Hawthorne (1884) 11 R 766.
[15] AC & IC Fraser at para [18].
[16] The fact that the defender’s agent had written to the pursuer’s predecessor requesting confirmation of the diverted route superseding the original route was irrelevant, since the pursuer’s only response had been to acknowledge receipt, ibid at para [19].
[17] Ibid.
[18] Ibid.
[19] Ibid at para [20].
[20] Ibid at para [12], cf. Davidson (n 13) and Hozier (n 14).
[21] Ibid at para [9], c.f. Reid & Blackie (n 7) at para 6-64; Cusine & Paisley (n 7) at para 12.84.
[22] AC & IC Fraser at para [24]. See also, generally, Peterson, Prescriptive Servitudes, paras 10-01 to 10-24.
[23] Ibid at paras [25] and [26].
[24] Ibid at para [26].
[25] Ibid at para [28], citing Hume, Lectures, vol 3, 267. See also, generally, Peterson, Prescriptive Servitudes, paras 8-08 and 9-13 to 9-14.
[26] Aberdeen City Council v Wanchoo 2008 SC 278. For discussion and criticism of the reasoning in this case, see Peterson, Prescriptive Servitudes, para 8-12 to 8-15.
[27] Rome v Hope Johnstone (1884) 11 R 653. See also Peterson, Prescriptive Servitudes, paras 10-19 to 10-20.
[28] AC & IC Fraser at para [27].
[29] Ibid at para [30].
[30] Ibid.
[31] See Peterson, Prescriptive Servitudes, paras 8-16 to 8-24.
[32] On this point, compare the assimilation of “tolerance” and “permission” in Soulsby v Jones 2021 CSIH 48 at paras [28] to [30] and Marwaha v McAllister [2024] ALO 28 at paras [48] to [61].
