MONCRIEFF v JAMIESON

Vehicular access through the granting of a servitude (or easement), is something that when not considered at the date of grant, can also fail to appreciate the need to park within the allotted space over the course of time.

In this matter, the presence of land-locking and the limitations of geography, presented the respondents with no real means to enjoy their occupation as freeholders, when the parking of their car(s) was to be restricted to a public road, literally hundreds of metres away from the family home.

Situated in the village of Sandsound in the Shetland Islands, the cause of action rested upon the estranged living arrangements between three parties.

The respondents were owners of a property first purchased from one of the appellants in 1973; and which, was built on a coastal plot allowing access via a stone stepped path across the vendor’s land, or equally by boat.

Due to the formation of the land, it was impossible to park cars on the land owned by the respondents, while the appellants were the vendor (third appellant) and his son and wife (first and second appellants), who owned a neighbouring property situated in the same of land as the respondents.

At the time of conveyance, the deed included a clause granting “a right of access from the branch public road through Sandsound”.

This public route terminated short of a gate set at the top of the steps; and during the preceding ten to fifteen years, the respondents used the land around the gate for parking, unloading and reloading and to provide subcontractors with parking space while undertaking work on their house.

This regular use of land was never objected to by the vendor; and so, continued without interruption, until such time that the second appellant and the respondent constructed a new section of road that allowed the respondents dual parking and turning space.

Having both enjoyed the space provided, it was later decided by the second appellant that he would extend his garden and use the parking area to accomplish it, which resulted in the respondents being forced to park on the vendor’s land some distance away.

When put before the courts, it was argued that the terms of the servitude implied that a right to park formed part of the covenant, and so denying them such rights was a breach of the obligation carried within the terms of the disposition.

After considering volumes of testimony and associated evidence, the court employed the services of the local sheriff who, after a laboured inspection, decided by interlocutory judgment that the respondents were entitled to exercise their right to park, and that any interference by the three appellants would result in legal action by the court.

Upon appeal, the Court found disagreement with the mechanics of the injunctive measure, and amended the declaration to provide a legal right to park within the area determined by the servitude, so as to allow freedom to enjoy the rights contained within it.

When presented before the House of Lords, the principles of easements and rights to park were carefully balanced when assessing both the needs of the dominant tenement and the servient tenement.

While use of the land permits freedom to pursue access, it must also continue to the serve the needs of the servient tenement, when equally enjoying use of the remaining land.

This formed the premise of debate; and so, it was decided that implication can be relied upon when embracing the entirety of the servitude, insofar as enjoyment of the grant must be provided for in full in order to defeat anything that runs counter to its effect.

This translated that the right to park in the area previously used, remained free of obstruction and the appeal was uniformly dismissed, while the House reminded the parties that:

“Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude.”

MILROY v LORD

When a man of standing sought to create a trust for the purposes of a relative’s benefit, he was careful enough to provide specific instructions to his trustee, but unfortunately erred in putting them into action.

A number of years after his death, the beneficiary challenged the assigned executor on grounds that his written desire for her to gain lawful receipt was sufficient enough to constitute an enforceable covenant and that the courts were inter alia wrong to deny it.

In 1852, the settlor drafted a deed-poll that enabled fifty shares of his stock held in the Louisiana Bank to be transferred to his associate (who had become his appointed trustee) on the proviso that under a number of specific conditions he was to hold the shares upon trust for the benefit of his beloved niece.

He also stipulated that during the time between his grant and the date of her marriage or his death, the trustee was to manage the trust and pay any profits arising from the dividend interest to the beneficiary.

During this period, the settlor also granted the trustee power of attorney over all of his financial matters, and so while it was possible for the trustee to complete the request, he never managed to fully execute transferral under the banking practice policy, which required the participation of either the settlor himself or a qualified solicitor, and where neither was found, that the power of attorney rested not with the trustee but the bank.

In the first instance, the presiding judge awarded that by virtue of the deed construction, a valid trust had existed, and that the fifty shares were to be reissued by the executor to the existing trustee, where they would be again held upon trust for the niece (as had been the case before the settlor’s death).

However, under appeal the Court took the equitable view that a legally incomplete gesture cannot be enforced as equity will not perfect an imperfect gift‘, and so held that it was impossible for the settlor to become a self-appointed trustee for the shares discussed.

Rather, it was declared that the funds were to be held upon trust by the executor until amendments could be made to the deed that provided for redistribution in the manner first intended, or until the trustee and beneficiary chose to take individual action against him, while the court reminded both parties that:

“[I]n order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.”