News
23 September, 2025
Whamond v Klasa [2025] SAC (Civ) 28
On 29 August 2025, the Sheriff Appeal Court determined an appeal and cross-appeal concerning neighbouring properties in Arbroath, Spring Garth and Willow Cottage. The key issue for determination was whether Spring Garth benefited from a servitude right of drainage to a septic tank situated on the grounds of Willow Cottage.
The defenders (proprietors of Willow Cottage), represented by Tim Young, succeeded in overturning the Sheriff’s finding that a servitude in favour of the pursuers (Spring Garth) had been created by implication at the time of the break-off disposition of Spring Garth in 1966. In particular, the Appeal Court held that the drainage contractor’s evidence as to the age of the original septic tank was inadmissible considering the proper scope of expert evidence, and accordingly there had been insufficient evidence to confirm the existence of the septic tank prior to 1977 (and in particular prior to the break-off disposition in 1966). The Appeal Court reaffirmed that evidence of use prior to a break-off disposition was critical to a finding of a servitude granted by implication.
However, the Appeal Court upheld the pursuers’ cross-appeal, holding that a servitude right of drainage had been constituted by positive prescription between 1977 and 2016 and that this right had not been abandoned when the septic tank was relocated by agreement in 2016. The court found the bar for abandonment to be higher than simple non-use and distinguished the facts in this case from those in the Magistrates of Rutherglen v Bainbridge ((1886) 13 R 745) – a case considered binding by the Sheriff at first instance.
However, as the old septic tank arrangement was materially different to a new one that had been installed in 2016, the Appeal Court confirmed that no servitude right had been created in respect of the new septic tank or its route. The practical result being to effectively leave the parties to consider whether the original drainage arrangements would be reconstituted or the new servitude formally recorded.
Pursuers, Respondents and Cross-Appellants: C. MacColl; Thorntons Law LLP Defenders,
Appellants and Cross-Respondents: T. Young; Harper Macleod LLP
Opinion of the court is here.