Is a servitude established by prescription?

Robert Oscar Sidebottom and Susan Irene Sidebottom v.  Mr James Jonathan Green and Mrs Pamela Helen Green and Sir George Ian David Forbes-Leith, 16 May 2014 – whether

Sheriff Court case considering whether a servitude right of access had been created by prescription. Mr and Mrs Sidebottom sought declarator that they had established a servitude right of access to their property (in Fyvie in Aberdeenshire) across the properties of Mr and Mrs Green and Sir George Forbes-Leith.

Mr and Mrs Green argued that the Sidebottoms had not taken access over the route for the necessary 20 year period and that the use had been infrequent and not of the “right kind”. The Greens contended that the Sidebottoms use of the access had been based on a mistaken belief that their title contained a servitude right of access over the roadway in question. They also argued that use of the access had not been peaceable pointing to a letter written by Mrs Sidebottom which referred to an ongoing dispute over the access and to the fact that the access had been obstructed.

The sheriff found that the decision came down to a question of reliability and credibility and preferred the evidence of the Sidebottoms. Although the access had been obstructed, the sheriff accepted Mrs Sidebottom’s evidence that they had nevertheless continued to use the access and inferred from that and the lack of evidence to the contrary that use of the access was nonetheless peaceable. Even although the Sidebottoms’ use of the access may have been based on a mistaken belief that they had a right to use the access in their title, the sheriff found that Mrs Sidebottom’s letter was further evidence that the Sidebottoms were asserting their right to use the access.

The full judgement is available from Scottish Courts here: