The rights and obligations on the proprietors of the servient and dominant tenements are implied by law, but they may be confirmed expressly or, within certain limitations, varied or supplemented expressly by means of conventional servitude conditions in a deed.
THE BALANCING EXERCISE
A servitude and the right of property in the servient tenement exist in relation to the one thing, the heritable property comprising the servient tenement. It is therefore inevitable that there must be processes of law which govern the continuing relationship between the parties entitled to these rights.
Lord Ardmillan spoke of "equitably adjusting" the claims of the parties to the relationship this does not mean that this is an area of Scots law g governed by equitable concerns to the abandonment of principal: Rather there are a number of general principles which require application in each particular case to secure an equitable result.
Before examining the general principles, it is worth remembering that the exercise of servitudes has an impact on the parties in addition to the holder of the servitude right and the owner of the property right. As real rights, the right of dominium of the servient proprietor and the servitude right of the dominant proprietor are both enforceable by the entitled parties directly against the other and, in addition, against third parties.
ENFORCEMENT OF A SERVITUDE AS A REAL RIGHT
Unless the servitude has been extinguished or its exercise suspended by statute, such third parties may be obliged by the dominant proprietor to submit to the exercise of the servitude and do nothing which would interfere with the proper exercise of the servitude.
For example, the dominant proprietor in a servitude of pasturage may obtain interdict to prevent a company from extracting peat on a commercial scale from the servient tenement to the extent that this would destroy the pasture even where is that company has obtained a licence to do so from the servient proprietor.
Similarly, where a servitude of access a public right of way exist in relation to the same track, the dominant proprietor in the servitude we obtain interdict to prevent a particular member of the public from carrying on activities, such as pony trekking on a commercial scale, where such activities are outwith the scope of the public right of way and are carried on in such a manner as materially to interfere with the exercise of the servitude.
ENFORCEMENT OF DOMINIUM IN SERVIENT TENEMENT AS A REAL RIGHT
The servient proprietor may enforce his property right against any third party who attempts to conduct any activity on the tenement without having the benefit of existing servitude communicated to him - assuming always that the activity cannot be justified some other basis. Depending on the nature of the activity, the actions of such parties constitute trespass or encroachment. Even where the third parties have had the benefit of an existing servitude communicated to them, the dominant proprietor me enforce is right of dominium against them to the extent that they act out with the Ambit of the servitude.
RIGHTS OF THE SERVIENT PROPRIETOR
1. To enjoy the ownership of his property in full, subject to any reasonable limitations imposed by the existence of the servitude. The right of dominium implies two things:
- The right of the owner to do an indefinite number of things within the property.
- The right to prevent others from interfering his property.
2. In certain circumstances, to limit the area in which the servitude is exercised or to divert the route of the servitude across. This issue has arisen for consideration by the courts in respect of two separate types of property:
- In cases concerning positive servitudes of bleaching, grazing or peatcutting exercisable over servient tenements comprising properties such as a large moor
- In relation to positive servitudes exercisable over long narrow routes such as access and servitudes involving the use of lengthy service media including pipes such as aqueduct
3. To enforce (and in some circumstances vary) the three legally- implied servitude conditions. They are as follows:
- A servitude must be exercised only for the benefit of the dominant tenement
- The exercise must be civiliter
- The exercise must cause no increase in the acceptable burden on the servient tenement
In addition, the servient proprietor has the right to agree with the dominant proprietor to impose conventional servitude conditions on the exercise or extent of the servitude.
4. To enforce remedies against the dominant proprietor and others in respect of actings out with the grant of the servitude.
OBLIGATIONS OF THE SERVIENT PROPRIETOR
The general obligation not to derogate from the grant. This implies taking no steps which interfere with the proper exercise and enjoyment of the servitude in the case of positive servitudes and taking no steps which interfere with the enjoyment of the servitude in the case of negative servitude.
To carry out steps to remove obstructions to, or abate interferences with, the servitude where such obstructions or interferences have been caused by the servient proprietor.
RIGHTS OF THE DOMINANT PROPRIETOR
- To carry out physical acts within the servient tenement which enable him to use the servitude right to the full. It is self-evident that the dominant proprietor can carry out within the servient tenement whatever activity is sanctioned by the servitude.
- To enter the servient property to do whatever is necessary to preserve the right. This is usually manifested in a right to carry out repairs and may not be used as an access for all purposes. The dominant proprietor may exercise the right himself or instruct others to do so.
- Within certain limitations, to choose the route within the servient tenement by which a servitude maybe utilized.
- To enforce remedies against the servient proprietor, or any other person, who interferes with the servitude.
- To surrender the servitude and discontinue its exercise.
- In exceptional cases, to exercise the servitude outwith the servient tenement
LIMITATIONS ON PURPOSE AND MANNER OF EXERCISE
Throughout all jurisdictions in which servitudes/ easements are recognized, the dominant proprietor is obliged to comply with certain limitations:
- The purpose for which the servitude may be exercised
- The manner in which it may be exercised
OBLIGATIONS OF THE DOMINANT PROPRIETOR
A servitude maybe exercised only for the benefit of the dominant tenement
The exercise must be civiliter.
In Scotland the effect of the Latin term “civiliter” has been expressed in various ways. It can be well understood from the opinion of Lord Jauncey: “the right must be exercised civiliter, that is to say, reasonably and in a manner least burdensome to the servient tenement. As it is put in, it must be exercised in the mode least disadvantageous to the servient tenement, consistently with full enjoyment.”
The exercise must cause no increase in the acceptable burden on the servient tenement
By: Navin Kumar Jaggi & Aashna Suri