The dominant tenement lay on both sides of the servient land, a driveway running North South leading to the A73 highway. To the West of the driveway, on part of the dominant tenement, stood a house. The owner of the house wished to construct a new drive to run eastwards from the driveway and thence to join the highway further east than the place where the servient tenement joined it. The owner of the servient tenement sought to stop him from doing so.
Held: He could not. A right of access over servient property could not in substance be used to benefit property other than the dominant property, whatever the ownership of the dominant and non-dominant properties.
Lord Jauncey of Tullychettle said: ‘Before turning to the facts of this case it may be convenient to state certain general principles applicable to servitude rights of access and their use: ‘Where a right of access is granted in general terms the owner of the dominant tenement is entitled to exercise that right not only for the purpose of the use to which the tenement is then being put but also for any other lawful purpose to which it may be put thereafter . . The right must be exercised civiliter, that is to say, reasonably and in a manner least burdensome to the servient tenement . . For the better enjoyment of his right the dominant owner may improve the ground over which the right extends provided that he does not substantially alter the nature of the road nor otherwise prejudice the servient tenement . . A servitude right of access inures to the benefit of the dominant tenement and no other. Thus is cannot communicated for the benefit of other tenements contiguous thereto . . What they may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those others subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non dominant subjects . .’ and ‘It is quite wrong to treat the A 73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A 73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic.’
Judges:
Lord Jauncey of Tullychettle
Citations:
(1990) 62 P and CR 10, [1989] SLT 746
Jurisdiction:
Scotland
Cited by:
Cited – D Watt (Shetland) Ltd v Reid EAT 25-Sep-2001
The employer appealed an award of ten thousand pounds including aggravated damages, and other elements after a finding of sex discrimination. They also awarded six hundred pounds in interest. It was asserted that Scots law did not allow for . .
Cited – Sargeant and Another v Macepark (Whittlebury) Ltd ChD 5-Mar-2003
The servient owner granted a lease of easements to the dominant owner, to provide a means of access to the dominant land, and from the dominant land (an hotel) to the Silverstone racing circuit. Subsequently the hotel owner negotiated a more direct . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 18 November 2022; Ref: scu.180363
