Moncrieff -v- Jamieson : Court of Session
The Court of Session's decision was issued on 4 February 2005 finding in favour of the Moncrieffs and thus asserting that they did indeed have a right to park as an ancillary right to their right of access.
It has been said that there is something about Moncrieff v Jamieson “that reaches the soul of the judiciary” [K G C Reid and G L Gretton, Conveyancing 2005 p 94, footnote 1]. An example of this being the opening paragraph of Lord Marnoch’s opinion which quotes from the opening paragraph of the opinion in the Canadian case of Lafferty v Brindley [Ontario Superior Court, 25 July 2001, unreported]:-
“Among its many charms Huron County boasts magnificent sunsets. If you look west from the plaintiffs' right of way along the lake bluff on a summer's evening the spectacle of the fiery orb sinking into the inland sea is sure to instil a sense of calm tranquillity. That feeling is an illusion! The very ground beneath your feet convulses in contending claims of adverse possession, prescriptive easement, and proprietary estoppel. It is a privilege of the people to enjoy sunsets but the lot of lawyers to litigate land disputes.”
This, Lord Marnoch said, with very little adjustment, would precisely echo his own sentiments in Moncrieff v Jamieson.
Whilst declining to derive any guidance as to the Scottish law of servitudes from the Canadian law of easements, even though there was a remarkable similarity between the facts of this particular Canadian case and that of Moncrieff v Jamieson, Lord Marnoch nonetheless reached exactly the same conclusion as was reached in that case and, thus, he was willing to imply a right to park.
Lord Philip concurred and, in his decision, the position was neatly summarised as follows:-
“I consider that the right to park is necessary for the convenient and comfortable enjoyment of the right of access. I come to that conclusion for this reason. It would constitute a legitimate exercise of the right of access for the proprietor of the dominant tenement to drive himself in a motor vehicle to the end of the access road adjacent to the steps leading down to Da Store with a view to gaining personal access to his property. If, as the appellants contended, he was prohibited from parking his vehicle there until he wished to leave again (whenever that might be) he would be obliged to remove it to a place beyond the third defender's land and to gain ultimate access to his property on foot. In those circumstances he could not gain personal access to his property in a vehicle of a kind permitted by the grant. His right of vehicular access would therefore, in my view, effectively be defeated. While it is well settled that a grant of a servitude right falls to be construed strictly in order to minimise the burden on the servient tenement, the grant cannot be construed so strictly as to defeat the right granted.”
Lord Hamilton, however, considered that servitudes must be strictly construed and was not prepared to regard parking as a necessary incident of a servitude right of access. Such a right, if required, should have been expressly granted in the original split off disposition relative to Da Store. No doubt his dissenting opinion gave the Jamiesons hope of a successful appeal before the House of Lords.
For advice on servitude rights or parking law contact Brian Inkster on 0141 229 0880 or send Brian an e-mail.