Positive prescription of servitudes in Scots law
Peterson, Alasdair Stewart Sholto
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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.