Property Interaction w/ Public & neighbouring Property Rights

Perth & Kinross Council 2007

• sought a declarator that certain parts of the estate were excluded from access rights 

  • 14 acres or 23 acres excluded 

• sheriff said that was what was required to provide sufficient privacy when you live in a place like a castle

Snowie v Stirling Council 2008

• estate was 70 acres 

• sought declarator that 40 acres should be excluded 

• ultimately only held that 12.6 acres were required for sufficient privacy, 

• included the riding area, tennis court, garden 

• but it was held to what was being used by the family 

Manson v Midlothian Council 2018 GWD 33-422

• smaller house in penicuik 

• part of land was a path leading to penicuik house, which the public used to access the house 

• sought to exclude the path from access rights, erected a gate, with anti climb paint and a lock 

  • argued necessary for privacy 

• sheriff disagreed due to the gate being 20 metres away from the house and held land still subject to access rights 

• these cases are very contextual

ppresumption of responsibility - access rights

presumed to be acting responsibly unless you are committing conduct excluded by s.9, in which case you are presumed to be acting unreasonably

Tuley v Highland Council 2007 SLT (Sh Ct) 97 rev’d 2009 SC 456

• s.14 interpretation

• large estate w/ woodland owners wanted to encourage public to use the woodland, but there was a particular path they did not want them to take due to concerns for erosion 

• highland council objected court affirmed that this was responsible management of land and was for good reason why it was prohibited

Aviemore Highland Resort Ltd v Cairngorms National Park Authority 2009 SLT (Sh Ct) 97

• obstacle in place prior to 2003 Act 

• sheriff held that if it was before the Act then it could not exist to prevent public access rights

*Renyana Stahl Anstalt v Loch Lomond and Trossachs National Park Authority 2018 SC 406, 2018 SLT 331

held even hedges and fences in place prior to 2003 Act failing to provide access points like gates or stiles could count as not taking an action for the express purpose of deterring access rights from being used.

dry land public rights of way

Right in the public at large for passage

you could see them as real rights as they can be enforced no matter who owns the land but they aren't real rights because there is no conferred benefit.

creation of dry land right of way - positive prescription

1973 Act s 3(3). Requirements:

(a)   A fixed route.

(b)  Between two public places.

(c)Used by members of the public for 20 (formerly 40) years.

  Possession must be (1) for whole length of the way (2) uninterrupted and (3) as [if] of right (ie not by tolerance). Amount of use required depends on location, eg whether populous, remote etc.

Rhins District Committee v Cuninghame 1917 2 SLT 168

creation of public right of way by prescription

• road going along river, 

• right of way constituted which left the road at a certain point, followed a closer path alongside the river, and then joined the ame public right of way further down the road

Marquis of Bute1937

creation of public right of way by prescription

• was there a public right of way to get to a beach 

• suggested it was actually attributable to the landowners permission 

• but the court held:

  • If a proprietor lies by while regular and unrestricted public use is made of a private road between two public termini for the prescriptive period, the law will assume a public right rather than an easy-going proprietor.

  •       (per Lord President Normand at p 120-1)

Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992 SLT 1035 affd 1993 SLT 1318

creation of public right of way by prescription

• overpass from shopping centre

  • evidence of it being vandalised

• owner began to lock it at night to prevent vandalism 

• held to be sufficient public use for 20 years and public right of use had been constituted

exerise of public right of access

Extent depends on degree of possession: tantum praescriptum quantum possessum.

Aberdeenshire County Council v Lord Glentanar 1999 SLT 1456

• case was actually from 1930 

• question was if a bicycle use could constitute vehicular or pedestrian right of way 

• court held only pedestrian, “bikes are aids to pedestrianism”

RIVERS, LOCHS, THE SEA AND THE FORESHORE:

In theory, the rights are held in trust by the Crown for the public (regalia majora). On this, and a number of other matters, the Scottish Law Commission has proposed changes

Rights are (subject to one exception) implied by law. They do not appear on the Land Register

rivers, lochs, and the sea - rights

(a) Foreshore. Navigation, ‘white’ fishing (ie not salmon, mussels and oysters) and recreation. On latter see Marquess of Ailsa v Monteforte 1937 SC 805. - public right of recreation does not include rights to sell ice-cream. 

(b) Tidal waters. (Crown ownership). Navigation and ‘white’ fishing.

(c)Non-tidal waters. (Private ownership). No implied rights. But right of navigation (only) can be acquired by 40 (NB) years’ user.

Cairngorm Canoeing and Sailing School Ltd 1976

• confirms this is still the law 

• landowners owned a significant section of river spey 

  • but a canoeing school had been using the river for a long long time.

• evidence the school’s use had been causing damage 

• due to the proof that they had been using it for over 40 years, they had established a right to navigation.

what is navigation

Moving boat through the water and acts reasonably ancillary thereto.

Clyde Navigation Trs (1891)

• can't deposit rubbish into the watter

*Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1979 SC 156

no fixed moorings

Scammell v Scottish Sports Council 1983 SLT 462.

allows to temporarily beach your boat.

rivers lochs and the sea - enforcement

By any member of the public (actio popularis) or by the Crown

Walford v David 1989 SLT 876.

• typically only be successful if there is material interference 

• in this case, the salmon fishin rings were interfering with the ferry routes, 

• held not interferences because other routes could be taken

trespass

Passage through another’s land without consent. By persons, by animals or (if temporary) by things.

Brown v Lee Constructions Ltd 1977 SLT - trespass

• crane used in land with a jib which sticks out to distribute weight of the crane

  • when it would move it “encroached” the airspace 

• in this case, it was trespassing

defences to trespass

(1) Consent.

(2) Exercise of a right. Eg servitude, public right of way, or access right under part 1 of the Land Reform (Scotland) Act 2003 (see s 5(1)).

(3) Judicial warrant. - e.g sheriff officer. 

(4) Emergency.

(5) Human rights? Scottish Parliament Corporate Body v Sovereign Indigenous Peoples of Scotland [2016] CSOH 65, and 113, 2016 SLT 761 and 862 affd [2016] CSIH 81, 2016 SLT 1307. 

• unsuccessful argument that being on parliamentary ground in exercise of freedom of assembly was not trespass.

remedies for trespass - interdict

 Discretionary remedy. Must show likelihood of future trespass

 Inverurie Magistrates v Sorrie 1956 SC 175.

interdict for trespass

asserted they had the right to race horses on someone’s land but didn’t actually do it. so it could just be Bullshit.

remedies for trespass - self-help

If too enthusiastic may be a civil or criminal wrong

Bell v Shand (1870) 7 SLR 267.

trespass: self help

• 15 year old was caught trespassing and effectively land owner took him by the neck and dragged him, dropped him off the land 

• held to be reasonable force, but probably wouldn’t be allowed today unless you found them inside your house.

remedies for trespass - damages

liability is not strict

Harvie v Turner (1916)

remedies for trespass - damages

• 2 fields, 1 had a bull, the other had many cows

• fence separating them 

• owner of the cows told bull owner that the bull was not being kept sensibly and the fence was not strong enough 

• eventually bull got over the fence and into the cow field. and had sex with the cows causing a number of unsuitable crossbred calves, whic hwas argued to be damaging to the cow owners business, argued it was foreseeable and negligent

Winans v Macrae (1885) 12 R 1051

trespass: straying animals

• interdict from “putting any lamb, lambs, sheep, cattle, or other bestial” on pursuer's lands.

• pursuer was tenant of 200,000 acres 

• defender was a shoemaker with 1 pet lamb

• no interdict granted.

Forest Property Trust v Lindsay 1998 GWD 31-1581

trespass: straying animals

• defender owner of a flock of sheep and had an order for interim interdict against her and the farmer sought recall because there is no common law obligation to herd your sheep and its common practise for sheep to police their own boundaries.

• and the defender would always bring her sheep back home

boundary walls

Either (1) wall built wholly on one side of the boundary or (2) wall straddles boundary.

Boundary walls - erecting new wall/fence

Must pay for it yourself, and erect solely on your own ground, unless consent of neighbour obtained

 the March Dykes Acts 1661 and 1669

relates to ural land over 5 acres, can apply to the court to have wall or fence constructed at joint expense.

Corrie v Craig 2013 GWD 1-55

neighbour also wanted wall of dry stane dyke whic hwould have been much more expensive, defender argued for a fence and court agreed that would be more reasonable

boundary walls - ownership

Governed by accession. But with type (2) walls there is common interest in the part which you do not own.

boundary walls - maintanence

where the wall is straddling on bondary due to common interest there is a positibe obligation of support

boundary walls - non-compliance with mutual obligation to support straddling walls

If common interest obligation not complied with, the other owner can carry out the work and recover cost

boundary walls - alterations

where mutual obligation, alteration must not endanger support

Thom v Hetherington 1988 SLT 724 - alterations on boundary walls

• T and H were not good neighbours and had a type 2 wall seperating property 

• tree belonging to T uprooted through the wall and began to destabilise it, H responded with poisoning the tree.

• H also was worried about T’s dog who was uncontrolled and neurotic and worried it might jump over the wall and attack the right 

  • so he threw coal over the wall 

  • T wanted to raise a six foot fence but to support it, it had to be supported by the wall 

  • fence was erected with H was away 

• when H came back he objected to the support saying it weakened the support of the wall.

• court disagreed with H 

The presence of the fence up against the wall would only have been actionable if such pressure impaired the strength or interfered with the stability of the wall ... Such impairment or interference must in my view be measurable and not merely negligible.

encroachment

Permanent or quasi-permanent possession of part of another's land without consent. Always by things not people

Duke of Buccleuch v Magistrates of Edinburgh (1865) 3 M 528

• Assembly rooms of George Street, has pillars which encroach onto the pavement 

  • when it was built AR owner did not have ownership of the pavement

• the pillars are still there,

• duke proved that because he went ahead, and didn’t prevent him, then the encroachment was acquiesed

Anderson v Brattisanni’s 1978 SLT (Notes) 42

encroachment

chip shop built a flue outside and put it outside the tenement to take away smell of fried food

held to be an encroachment but no remedy available due to the fact it had been there for 9 years without objection and was costly.

Leonard v Lindsay & Benzie

A proprietor is not entitled to encroach upon his neighbour's property even to the extent of driving a nail into it.

but the level of materiality is crucial on remedies and consequences

main defence of encroachment

consent including implied consent (acquiescence).

Strathclyde Regional Council v Persimmon Homes (Scotland) Ltd 1996 SLT 176

encroachmentPH were building properties, and were granted planning permission by strath council, including building a road 

• however when they begun the road the council objected, and PH said that the planning permission acquiesced 

• in the public capacity they had consented but as a private land owner they had not and so the court held it was an encroachment

remedies of encroachment

Interdict. - subject to time constraints. bc it can only stop before or during.

Removal of encroachment.

Damages

Self-help.

removal of encroachment

 court has discretion to refuse remedy, and is likely to do so where (a) encroachment slight (b) perpetrator reasonably believed it to be unobjectionable and (c) some reasonable use of perpetrator's property depends on encroachment remaining in place.

McLellan v J & D Pierce [2015] CSIH 80.

• 2 neighbours - 1 built slightly over the boundary 

• 2 wrote to the encroachers solicitors telling them the boundary and instructing them to stop work, 

  • letters were ignored

• 1 then erected a steel fence which was also an encroachment 

• 2 brought action to remove, and court agreed 

• court reasoning being 1 genuinely thought land was theirs but was not reasonable as they were warned and went ahead.

Property Selection and Investment Trust Ltd 1998 SCLR 314 and 792.

do not try and remove it yourself or you may be refused damages.

self-help encroachment remedy

(a)     encroachment acceded

(b)     overhanging building

(c)     overhanging branches/roots 

(d)     moveable property.

support

Land is supported both subjacently and adjacently, and it is a delict to use your land in such a way as to cause withdrawal of your neighbour's support. In practice important mainly where surface belongs to A and minerals to B.

No positive duty to support. Obligation is merely not to withdraw existing support. Liability is strict.

But note (1) that title deeds may vary these rules and (2) that the Coal Authority is liable under the Coal Mining Subsidence Act 1991 for damage caused by coal-mining.

aemulatio vicini

Spiteful acts conferring no benefit on landowner,

Dunlop v Robertson (1803) Hume 515

AEMULATIO VICINI

• solicitor owned property next to neighbour 

• sol raised wall to 16ft and now neither received light 

• managed to convince the court he erected it through reasons of privacy

More v Boyle 1967 SLT (Sh Ct) 38

aemulatio vicini
pipe running through A’s land allowing water to run to B’s 

• no servitude involved

• A cut off pipe, held that motivation was merely spite. liable for damages.

High Hedges (Scotland) Act 2013.

aemulatio vicini

• you can apply to local authority for high hedges or worry of, and seek notice, 

• for hedges above 2 metres forming a barrier to light. 

• can require hegde to be reduced. 

• it is a criminal offence not to comply.

physical limits - Land Register

disclosed in title sheet

physical limits - sasines

either titles contain a bounding description or they do not in which case boundaries depend on prescriptive possession.

bounding description

verbal (written) or essentially a blueprint of the land

physical limits - a coelo usque ad centrum

from heaven to the centre of the earth

Bernstein v Skyviews and General Ltd [1978] QB 479 at 487 per Griffiths J

stated that owning up to the heavens would lead to absurd trespassing whenever a satellite passes by. now the limit is likely however high to be reasonably enjoyable.

Cooper’s Trs v Stark’s Trs (1898) 25 R 1160.

Additional piece of land. Must be used in association with the principal land. In practice requires to be fortified by positive prescription where not the subject of a clear express grant

if you are dealing with a piece of land and additional pieces then the pertinent has to be expressly described.

Rights of common property.

In practice created either by express grant in original break-off conveyance or by Tenements (Scotland) Act 2004 s 3.

*PMP Plus Ltd v Keeper of the Registers of Scotland 2009 SLT (Lands Tr) 2.

Rights of common property.

“a pro indiviso share with all the proprietors of all other dwellinghouses and flatted dwellinghouses erected or to be erected on the development…in and to those parts of the development which on completion thereof shall not have been exclusively alienated to purchasers of dwellinghouses or flatted dwellinghouses, which said parts comprise or shall comprise inter alia… other areas of open space”.

Conventional separate tenements

Created in a disposition (or feu disposition) either by grant or by reservation.

Below ground available without restriction, eg minerals.

Above ground not generally allowed

Crichton v Turnbull 1946 SC 52;

• where pipe work upon ground, attempt made that it was owned separate from the ground underneath 

• court said no, which is why servitudes are necessary

seperate tenements

Ownership a coelo usque ad centrum is subject to separate tenements, ie heritable property owned separately from the solum (soil).

must be corporeal

*Compugraphics International Ltd 2011

• duct pipes between properties, 

• argument made that the pipes were a separate legal tenement from the land 

• court again said no

legal seperate tenemetns

Impliedly reserved from Crown grants. But, as regalia minora, could be expressly granted either to owner of solum or (more usually) to someone else. Insofar as not granted they still belong to the Crown

examples of legal seperate tenements

Right to fish for salmon. Although incorporeal it is treated in the same way as a physical stratum of earth, ie not as a right in land but as land itself.  

• unless it has been granted to you, you do not have this right unless the crown granted this

 Right to gather mussels.

Right to gather oysters

Mines of gold and silver:

Petroleum and natural gas:

Coal. Belongs to the Coal Authority and not the Crown. See Coal Industry Act 1994 s 7(3

No accession possible across boundaries of separate tenements.

e.g if you own a flat, and have a flat above, it obviously doesn't exceed to their flat. and the same below.

 paction

you are restrained in the way which you choose i.e contracts and granting of securities.

Erskine II.1.1 - rights of exclusive use

defines ownership as "the right of using and disposing of a subject as our own, except insofar as we are restrained by law or paction".

jus utendi fruendi abutendi

ownership means being freely able to use, enjoy the fruits of, and destroy what is yours.

title to sue - right to exclusive use

Possession of land may be protected/recovered by the owner of land or, where it is tenanted by the tenant.

How does a pursuer prove title?  The rules are complex, but in summary they are these.

(1) Where the defender avers an independent and competing title, pursuer must prove that he owns the land (or, as the case may be, is the tenant). Proof of ownership was considered in Head 10.

(2)Where the defender does not aver an independent and competing title, the pursuer need show only a prima facie title (eg a recorded disposition in the pursuer’s favour), and evidence of possession is not required.

restraints on use

neighbour law

statute

special regimes

agreements

alveus of tidal waters

the bed of a body of water Property of Crown, within territorial waters.

Regalia minora and so can be sold or leased. Part of Crown prerogative

• if the crowns right is feudal, it would be difficult to see how the crown would own the shorebed in shetland as it used the udal law not feudal, 

• and the court held that the right was not feudal, but owns it by virtue of being the sovereign

Foreshore

(= part of the shore which is wholly covered by the sea at high tide and wholly uncovered at low tide of ordinary spring tides) belongs to the Crown where it has not been feued out/disponed or acquired by prescription.

For public rights over sea and foreshore see Head 23 below.

Alveus of non-tidal waters

Presumed property of owners of banks ad medium filum. But titles or prescription may provide another rule in individual cases

Water

running water is ownerless

non-tidal waters and common interest

Each riparian proprietor has a right of common interest in those parts of the river/loch which he or she does not own. Content open, at least in theory, but includes:

(a) Obligation to refrain from acts which materially interfere with the water or with its natural flow. See *Morris v Bicket (1864) 2 M 1082. But water may be extracted for ‘primary’ (ie domestic) use.

(b) (For lochs only) obligation to allow fellow proprietors to fish and sail.