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Moncrieff v Jamieson

Moncrieff v Jamieson

Case [2007] UKHL 42 17 October 2007

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HOUSE OF LORDS

SESSION 2006–07

[2007] UKHL 42
on appeal from:

OPINIONS

OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE

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

Appellate Committee

Lord Hope of Craighead

Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Mance
Lord Neuberger of Abbotsbury

Counsel

Appellants: Respondents:

Andrew Hajducki QC Iain Mitchell QC

Gordon Junor Nicholas Holroyd

(Instructed by Anderson & Goodlad) (Instructed by Inksters)

Hearing dates:

11 and 12 July 2007

ON
WEDNESDAY 17 OCTOBER 2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Moncrieff and another (Respondents) v. Jamieson and others

(Appellants) (Scotland)
[2007] UKHL 42

LORD HOPE OF CRAIGHEAD

My Lords,

1. The pursuers are husband and wife and live with their three children in subjects known as “Da Store”, Sandsound, Shetland, of which they are the heritable proprietors. At the time when these proceedings began the first defender was the heritable proprietor of a nearby dwellinghouse known as “The Storehouse” where he lived with his wife, who is the second defender. The third defender is the father of the first defender. He is the heritable proprietor of lands surrounding The Storehouse lying between Da Store and the Sandsound public road. Da Store is bounded on the west by an arm of the sea known as Sandsound Voe and on its east and south sides by lands owned by the third defender. It is bounded on the north side by lands which are in separate ownership.

2. Da Store previously formed part of the lands now owned by the third defender. It was separated from those lands by a disposition by Mitchell George Alexander Georgeson in favour of Mrs Margaret Stuart which was recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland on 3 September 1973. The situation of “Da Store” is such that it has no direct access to the system of public roads that serves the community in that part of Shetland. So among the rights conveyed by the disposition, to be enjoyed together with the lands on which the subjects are situated, was the following: “(Fourth) a right of access from the branch public road through Sandsound.” The branch public road is the road referred to as the Sandsound public road in the previous paragraph.

3. Da Store lies at the foot of a steep escarpment close to its boundary with the lands owned by the third defender. The buildings are situated between the foot of the escarpment and the foreshore. They are not accessible from the lands which lie to the north side of the property. They are accessible from the lands belonging to the third defender on the east side. But this is possible on foot only, by means of a gate and a stairway. Vehicles cannot be driven onto any part of the land on which Da Store is situated. It is common ground that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moncrieff v Jamieson

Details

AGLC: Moncrieff v Jamieson [2007] UKHL 42
Case: [2007] UKHL 42
Decision Date: 17 October 2007

CaseChat Overview and Summary

Moncrieff and another (Respondents) v Jamieson and others (Appellants) was a case heard by the House of Lords, where the central issue was whether the respondents had a right to park their vehicles on the servient tenement. The respondents, who lived in a house called Da Store, argued that they had a right to park vehicles on the land owned by the appellants, which was the only access route to Da Store. The House of Lords considered two main issues: whether a right to park could be constituted as an accessory right to an admitted servitude of vehicular access, and whether such a right was constituted in the particular circumstances of this case. The House of Lords ultimately held that the respondents had a right to park vehicles on the servient tenement, as it was necessary for the reasonable and comfortable enjoyment of the right of vehicular access. The Lords also held that the right to park was limited to a reasonable number of vehicles and could be exercised in accordance with the principle of civiliter. The House of Lords dismissed the appeal and adhered to the Extra Division's interlocutor.

Orders