Servitudes of access and public rights of way are similar in many respects. They both involve the right of access across another person’s land. They both might be created by virtue of access being taken on someone’s property over a period of twenty years without there being any attempts by the landowner to stop it.
There need not necessarily be a formal deed or contract between the landowner and those who exercise the right: the fact that the user has used the access route openly without being challenged by the landowner can be enough. If the existence of the right is in doubt and a court action is raised then the parties’ evidence should focus on exactly what route of access has been and is being taken, who used the route, for how long and how often.
There are nevertheless clear differences between servitudes of access and public rights of way despite their similarities. In a recent case where a well-known path over privately-owned land was blocked off an order was sought declaring that it was a public right of way. This case makes it clear that the distinctions between the two legal rights should not be overlooked.
The case background
The case concerned a straight woodland path traversing through land owned by the Defender (C). The Pursuers (B) had allegedly used the path for over twenty years before C blocked it off. C created a new route in place of the old path around the woodlands but it was less direct.
The original path was in a remote location in the Angus hills but it was well known locally. B therefore sought an order from the court declaring that the original path was a public right of way. If this order was granted then B would have been able to force C to stop blocking access along the path.
The case proceeded to a proof (a trial or hearing of evidence) where evidence was given by B, a member of their staff and a visitor who came to stay with them on occasion. B’s witnesses all stated that they had taken access across the path for twenty years or so, openly and without any challenge by C until recently. They stated that access was taken at all different times of the day and C was never asked for permission.
The decision
In his judgement Sheriff Murray decided that, notwithstanding this evidence, there was no public right of way.
His decision was based firstly on the failure of B to provide credible and reliable evidence that the path was used for 20 years. More importantly, however, his decision was made on the basis that, even if Bs’ evidence was accepted, the criteria which must be satisfied to constitute a public right of way had not been met.
A public right of way is (as the name suggests) a right in favour of the general public. In order to establish the right it is therefore important that the public in general use the path.
In this case the only people who gave evidence were those who used the path solely as a means to access B’s property. There was no evidence that the general public used the path. Sheriff Murray therefore found that a fundamental requirement of the test for creating a public right of way had not been met.
Servitudes compared to public rights of way
The main difference between a servitude and right of way is that a servitude can cover more than just access. If the servitude is granted in writing then in theory it could cover almost any act carried out over the granter’s land. On the other hand if the servitude is implied by law (such as where it has been exercised for twenty years “openly, peaceably and without judicial interruption”) then it may only be one of a set list of servitude types. These include access, parking, drainage, overhang of signs or vents and pasturage of animals.
A public right of way, however, can only be a right of access.
Another distinction is that a right of way has to be a specified route or path which is defined as leading in a line from point A to point B. Both points A and B must be public places (such as other public roads or pathways). It is not possible to have a right of way over a whole area of land or for the purposes of standing or gathering in one spot or carrying out a task. It is also not possible to have a right of way which is a circular route, such as an orbital path which starts and finishes at the same place.
A servitude on the other hand can be over a generally defined area for various purposes and to various extents. It could be for simple access from A to B but a person exercising their servitude right may also be able to gather or stay in the access area to carry out a task (such as for gardening or for maintaining a septic tank or water pipes) and there is no problem with the access route (if it is a route and not just an open area) being circular.
A further difference is that a servitude of access over land can often be modified by the landowner by agreement with the person who has the right of access. A public right of way is a general right available to everyone in the public so it is not generally possible for the landowner to change the route of the path to any substantial degree.
While it may seem that a servitude and a public right of way are substantially similar, there are distinct differences which should be borne in mind by those who wish to exercise their right of access or those who want to prevent such access. People wishing to do so should always consult a solicitor for advice.
