Case considering rights to a private access road in Dunblane. Mrs Dalgleish’s Land Certificate described the subjects as follows:
“Roseville, Kilbryde Crescent, Dunblane FK15 9BA edged red on the Title Plan, together with a right of [sic] common along with the proprietors of the other cottages to the access tinted yellow on the said Plan...”
Mrs Dalgleish argued that this entitled her either to a right in common (along with the proprietors of the other cottages) to vehicular and pedestrian access by the road or to a servitude right of way over the road. The owners of the other cottages argued that there was no right in common and any servitude right which had existed had been extinguished by negative prescription or abandonment.
Lord Tyre said that it was hard not to conclude that the dispute had arisen as a consequence of an error of transcription made during the registration of the title in the Land Register. He considered the possibility that the Court could consider prior deeds as aids to interpretation of the description of the subjects. Although noting that the “curtain principle” (which precludes looking at the deeds behind the register) was not absolute, Lord Tyre found that the circumstances which would allow reference to the prior deeds did not exist in this case the issue would have to be determined by reference only to the title sheet.
However, after rejecting the possibility that Mrs Dalgleish had acquired a right of common property or common interest in the road, Lord Tyre found that the use of the word “access” in conjunction with the colouring in the title plan was enough to make it clear that the right acquired by Mrs Dalgleish was a servitude right of way.
A proof was allowed as to whether the right was one of vehicular or pedestrian access and whether the right had been extinguished by abandonment.
Scottish Courts, 18 March 2011