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The Positive Prescription of Servitudes in Scots Law Alasdair SS Peterson Presented for the degree of Doctor of Philosophy University of Edinburgh 2016 Abstract This thesis examines the establishment of servitudes by positive prescription in Scots law, with particular reference to the doctrine’s conceptual development and the nature of possession required under section 3 of the Prescription and Limitation (Scotland) Act 1973. The thesis is divided into three main parts. The first provides a historical account of the law of positive prescription as applied to servitudes from the 17th century to the 20th century, culminating in its statutory expression in section 3(1) and (2) of the 1973 Act. The second considers what the 1973 Act means when it says that a servitude must be “possessed” for the prescriptive period. While jurists in Scotland have traditionally thought that a right cannot be possessed as such, since it lacks a physical corpus, they have tended to view the apparent exercise of a right as equivalent to the detention of a corporeal object and concluded that servitudes can be “possessed” (or “quasi-possessed”) by analogy. An alternative approach is to say that, while possession denotes a comprehensive factual control of an object for one’s own benefit, certain lesser degrees of factual control are also protected by the law. On this view, the (apparent) exercise of a servitude constitutes a limited “possession” of the land itself and is protected accordingly. Part two argues that this alternative approach is the more coherent and provides helpful analytical tools for understanding what is really going on when a servitude is “possessed” for the purposes of prescription. The third part of the thesis consists of a detailed analysis of the nature of the possession required to establish a servitude by positive prescription. In particular, possession “as if of right” is shown to consist of two “steps”: firstly, the prescriptive claimant must show sufficient possession to indicate that a servitude is being asserted; and, secondly, the possession must not be “by right”, i.e. referable to another right already held by the claimant. After this, the statutory requirements of openness and peaceableness are considered in detail. i Lay Summary In Scots property law, a servitude is a right which entitles the owner of one piece of land, known as the “dominant tenement”, to do something on, or take something from, a piece of land belonging to someone else, known as the “servient tenement”. Common examples include rights of access, grazing and (more recently) parking. One way in which such rights can be created is by “positive prescription”, i.e. where the dominant proprietor has acted for twenty years as if the servitude already exists. The first part of the thesis provides a historical account of the way in which the establishment of servitudes by positive prescription has been understood in Scots law from the 17th century through to the 20th century. Essentially, Scots law has moved from viewing prescription as clarifying what was included in the title deeds of the dominant tenement to viewing it as a distinct doctrine where the apparent exercise of a servitude for twenty years amounts to conclusive proof of its existence. The second part of the thesis considers whether it is correct to say that someone who has acted for twenty years as if exercising a servitude can be said to have “possessed” that servitude. It is argued that it is more correct to see the person’s behaviour as a limited “possession” of the servient tenement in the same way that someone who has comprehensive control of a piece of land – as an owner would – is seen to have full possession of that land. The third part of the thesis consists of a detailed analysis of the modern law, as set out in section 3 of the Prescription and Limitation (Scotland) Act 1973. This section states that a servitude can only be established by positive prescription when it has been “possessed for a continuous period of twenty years openly, peaceably and without judicial interruption”. In addition, the law requires that the servitude be exercised “as if of right”. This last requirement comprises two “steps”: firstly, the owner of the allegedly-dominant tenement must show sufficient possession to indicate to the owner of the servient tenement that a servitude is being asserted over his land; and, secondly, the possession must not already be “by right”, i.e. referable to another right already held by the owner of the allegedly-dominant tenement. iii Declaration I, Alasdair Stewart Sholto Peterson, declare that I have composed this thesis, that the work contained in it is my own, and that it has not been submitted for any other degree or professional qualification. Alasdair SS Peterson Edinburgh August 2016 v Table of Contents Abstract .................................................................................................................................... I Lay Summary ......................................................................................................................... III Declaration ..............................................................................................................................V Acknowledgements ..............................................................................................................XI Abbreviations ......................................................................................................................XIII General Introduction .............................................................................................................. 1 A. Terminology .................................................................................................................... 2 B. Policy justification ........................................................................................................... 2 C. Overview of thesis .......................................................................................................... 5 1. Roman Law And Later European Developments ............................................................ 7 A. Introduction ..................................................................................................................... 7 B. Roman law ...................................................................................................................... 8 (1) Overview of the general Roman law(s) of prescription ............................................ 8 (2) The usucapio of servitudes in pre-classical Roman law .......................................... 9 (3) The protection of long-enjoyed servitudes in classical and post-classical Roman law ................................................................................................................................ 11 C. Later European developments ..................................................................................... 13 (1) The reception of Roman law in Europe .................................................................. 13 (2) The establishment of servitudes by prescription in Roman-Dutch law .................. 15 (3) The European codifications .................................................................................... 16 D. Summary ...................................................................................................................... 20 2. Origin And Conceptual Foundations: 1617-1800 .......................................................... 21 A. Introduction ................................................................................................................... 21 B. Servitudes, the 1617 Act and immemorial possession ................................................ 22 (1) The “interpretative approach”: servitudes as parts and pertinents ......................... 24 (2) The “acquisitive approach”: servitudes as objects in their own right ...................... 28 (3) Independent of the 1617 Act: established by immemorial possession .................. 32 (4) Independent of the 1617 Act: possession as evidence of a previous grant ........... 38 C. Conclusion .................................................................................................................... 39 3. Conceptual Development: 1800-1914 ............................................................................ 41 A. Introduction ................................................................................................................... 41 vii B. From interpretation of title to presumed grant .............................................................. 42 (1) Before Beaumont: prescription of servitudes beyond