10. Res Merae Facultatis: Through a Glass Darkly

Sheriff Douglas J Cusine

A. Introduction

When Robert and I went to study Law at the University of Glasgow in 1964, one of the entrance requirements was a pass in what was then called “Lower” Latin, later an “O” level and now a Standard Grade. In the class on Civil (Roman) Law, there were frequent mentions of Latin, without any translation, and in it and the other classes such as Scots Law, there was an assumption that the audience had some idea of what the various Latin terms meant. At present, any such assumption would be misplaced. I do not know when the requirement for Latin was dropped, but in more recent times, because the language is taught in only a few schools, law lecturers will either continue to use Latin terms, but translate them, or perhaps avoid using them.

When I was an academic lawyer, I benefited enormously from Robert’s knowledge of the law and his experience of practice. We rarely conversed in Latin, but it might have seemed to so a bystander!

While a knowledge of Latin is no longer required of law students, Latin survives in at least one Scottish statute – the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”). In Schedule 3, the Act gives a list of things to which the rules on prescription do not apply and one of these is something which is “exerciseable as a res merae facultatis.” One assumes that the term was used in the legislation simply because a translation would not assist in understanding what is comprehended by it. There is no discussion of the concept in the Scottish Law Commission documentation which led up to the Act, beyond the description “rights of such a character that their exercise would be expected only periodically or irregularly,”1 nor in the Parliamentary debates which preceded the 1973 Act,2 except that during the Second Reading on the Bill, the Minister described the right as one “which the proprietor may assert or not as he pleases, without the risk of losing the right by failure to assert it.”3 As the expression is not defined in the 1973 Act, its meaning must be the common law meaning.4

Res merae facultatis means a thing or right which is a mere faculty, but it is clear that the right being discussed is something which the holder can exercise or not,5 and if it exercised, it can be done at any time. As the Extra Division in Peart v Legge6 observed, that is “correct (up to a point) because the possessor of any right may choose to exercise it or not.”7 Thus every right could be described as res merae facultatis. However, that leads to confusion and it is clear that res merae facultatis is narrower than other rights, if only because it is exempt from prescription. An example of the confusion which could arise can be seen in the following example. If I own a piece of ground, I am at liberty at any time to build on it (title and planning considerations apart), or to refrain from building. The right of ownership never prescribes, unless there has been prescriptive possession for 10 years on a competing title. Assuming that there is no such adverse possession, my rights as owner are res merae facultatis. However, if I have an express grant of a servitude of access, it is entirely up to me whether I use it or not, but if I do not use the servitude right, it will be lost in 20 years, and so the choice whether to exercise it or not also goes. If that right were categorised as res merae facultatis, it would be a subsidiary right, and as such, would remain valid only if the principal right remained. If I have the right to use a piece of ground for the construction of a road, that is a principal right, and it never prescribes. Res merae facultatis, therefore, has to be confined to that narrower class of rights which do not prescribe, unless lost in some other way. If I have a right which is res merae facultatis, I could discharge it expressly, or by my abandoning it, or it could be discharged by my acquiescing in something done by another which is inconsistent with the exercise of my right, e.g. by permitting a wall to be built over a passageway which I could, at some time, make into a road.

I intend to look at Institutional and other writings, and some of the reported cases, not with a view to trying to categorise rights which are res merae facultatis, but rather to challenge the view that a right which is res merae facultatis does not impose any obligation on any other party.

B. Institutional and other Writers

The customary place to begin is with Stair, but I have not been able to trace any mention of res merae facultatis, except in More’s Notes: “But rights merae facultatis are not liable to be cut off by prescription.”8

The first mention I have been able to trace is in Bankton:9

It is a general rule, that res merae facultatis numquam praescribitur. A mere faculty, or power of using a thing cannot prescribe. A faculty is either a Liberty granted by the public law … or Private, competent to one in the exercise of his right, as to build on his own ground at his pleasure…. One, by forbearing the exercise of a faculty during the course of prescription will not be hindered to use it, which is the import of the foresaid maxim: thus the proprietor may raise his building to the prejudice of his neighbour.

Erskine states:10

Certain rights are ex sua natura incapable of the negative prescription, at least where statute does not interpose. First, powers which one may exercise or not at his pleasure ex gr. a power or faculty to burden lands with a certain sum, or to revoke a right granted.... Hence also the right inherent in every proprietor of building or using any other act of property on his grounds, cannot prescribe by any length of time, though a neighbouring landholder should suffer ever so much by the exercise of it.

Bell in his Principles says no more than “negative prescription will not affect res merae facultatis.”11

Turning to other writers, Kames mention the notion:12

But there is here a remarkable Limitation, which makes a considerable further Restriction upon Rights prescribable; which is, That personal Powers or Faculties, such as Faculties to burden, to alter or innovate, to revoke, &c. though inferring a Burden upon others, are not lost non utendo. The true and adequate Reason whereof is this, that it being involved in the very Idea of a Faculty, to be exercised quandocunque at the arbitrary Pleasure of the Possessor, as well now as afterwards, as well afterwards as now, Neglect or Desertion, the Causes operative of Prescription, can never be inferred simply from Forbearance. In Rights the very Design of which is to be made effectual quam primum, such as Obligations for Money, or other Prestation, Forbearance to act upon these, implies Neglect and Dereliction. But where it is the very Intention of the Thing, that the Matter should lie over, where it is entirely arbitrary, whether the Power be exercised this Day or hereafter, the forbearing to act at present cannot infer in the Nature of Things Neglect or Dereliction. These Limitations upon the negative Prescription, viz. Acts of personal Liberty, that imply but one Person, and Faculties of the Nature to be exercised quandocunque, are both of them generally comprehended under the Expression of, though very different in their Natures and carefully to be distinguished. As for the positive Prescription, all Rights may be acquired thereby that are capable of Possession.

In Kames’ Elucidations, commenting on the Prescription Act, he states:13

The statutes of this island are not illustrious for profound knowledge. The exceptions are few, and this present act 1672 is one of the most illustrious ... Res merae Facultatis. Where a man provides to himself a power to exercise the faculty or not, as he finds it convenient and where therefore delay is no evidence of dereliction, nor even of negligence.

Further on in the same Article, he says:14

(T)here is another species of rights and privileges more properly termed res merae facultatis, because they concern the privileged person only and affect not others; such as my choosing a spot for a kitchen-garden, planting a tree, or building a house at my March.

In his Lectures, while not specifically mentioning res merae, Hume states:15

Prescription shall not apply to those claims which by their kind, do not seem destined to be used at any particular season, but are in their very nature arbitrary or discretionary to be used at any time – sooner or later – according to the convenience of the person concerned; so that his silence is no sufficient ground of inference of a purpose to abandon, nor can any particular day or term be fixed on, at which, more than another, prescription should begin to run against him.

Slightly further on, he makes this point:16

Beside, in some of those instances the right, ... is effectual, to the party concerned, and yet does not encroach on or shall impair the interest of any other person, does not operate in the shape of a call or claim on any one, does not result in any demand against any one, to yield anything, or donor perform anything, for the benefit of the party who uses the right.

In Lectures on the Law of Scotland, J S More has this to say:17

Rights which are mere facultatis, as they are called – that is rights which a party may or may not exercise at pleasure, and by the non-exercise of which no right is enjoyed or conferred on any other party, are not liable to be cut off by prescription. Thus the right of a proprietor to erect a mill or any other building on his lands, though not exercised for a hundred years, will never prescribe, however desirable it might be for his neighbour that no such building be erected.

Napier observes:18

Negative prescription involves the idea of opposing interests; a party debtor being thereby understood to be relieved from his obligation by the neglect, inferring dereliction, of the party creditor. So all rights and uses of property which imply no claim against another may be exercised quandocunque; [citing Kames and a case]19 These, and the like Imprescriptible rights, have come under the denomination of res merae facultatis.... Besides the res merae facultatis which involve no idea of any opposing interests, there are certain personal powers and faculties which, from their nature, come under the same demomination, although the patrimonial interests of another be concerned in the exercise or non exercise of such powers. It is involved in the very idea of a faculty that it may or may not be exercised, according to the will of the party in whose favour it is constituted.

Millar on Prescription comments:20

The solum of a public footpath belongs to the proprietor of the land through which it runs; and his right to erect gates across the path ... is consequently a right to make a certain use of his property at his own pleasure, is res merae facultatis, and is not liable to be extinguished by failure to exercise it.21

Trayner’s Latin Maxims defines res mere facultatis in this way:22

A matter of mere power; a mere faculty.... It is a right which may or may not be exercised at the pleasure of him who holds it; and such rights are never lost by their non-exercise for any length of time, because it is of their essential character that they may be used or exercised at any time.

Gloag:23

[I]n certain cases the negative prescription is excluded on the ground that the right against which it is pleaded is one res mere facultatis, a right which the creditor may exact or not at pleasure. In one sense this is obviously true of every right, and it is difficult to frame a general canon of distinction. According to Pothier (Vente, v391), the principle of res merae facultatis applies where the right in question is one Implied by law, e.g. the right to increase the height of a building; or where it is inter naturalia of a contract e.g. the right, in pledge, to recover the article.

In his book on Prescription and Limitation, David Johnston looks at the notion of res merae facultatis against the background of some of the reported cases and then states:24

It seems reasonable to conclude that res merae facultatis is a property right which cannot be lost by negative prescription either: (1) because it is a right whose exercise implies no claim on anyone else or against their rights; or (2) because it is a (normal) incident of ownership) which can be lost only as a consequence of the fortification in some other person of a right inconsistent with it. The common ground between these two categories is that they are rights which are lost only by the establishment of any adverse right, and that can happen, if at all, only by positive prescription. But so long as there is no adverse right there is no question of their prescribing.

He also observes that there has been recent academic discussion of the concept, principally against the background of Peart v Legge.25

In A S Brett’s Liberty, Right and Nature,26 in a chapter entitled “The language of natural liberty: Fernando Vazquez de Menchaca,”27 the author says:

Within the prescription literature in general, prominent among those imprescriptibilia is facultas, where by a facultas is understood a power of free choice of doing something or not, at will…. A faculty is, in this connection, expressly contrasted with a right (ius): if I have right of doing something which I do not exercise, then after thirty years another person may claim to have prescribed that ius, to the extent that I no longer have it. But a faculty, which lies within my own free will, can never enter the sphere of civil law.

While there may be some merit in drawing a distinction between a right and a faculty, it does not advance our understanding of what rights are comprehended within res merae facultatis and which are not. It may be that while an elephant is difficult to describe, but is easily recognised, a res merae facultatis is neither easy to describe, nor to recognise. In the end, what is or is not res merae facultatis may come within that well-known jurisprudential notion that each case turns on its own facts.

C. Cases

Morison’s Dictionary has a separate heading of Res Merae Facultatis and reports a number of cases on it,28 but they do not greatly assist in defining or categorising those rights which are res merae, and some of the cases relate to issues which are no longer of any moment.

In Crawford v Bethune,29 the right to work minerals was regarded as res merae facultatis and in Agnew v Magistrates of Stranraer30 a right of oyster fishing was also so regarded. These are examples of incidents of ownership and, as has been noted, the right of ownership of land never prescribes, except against an adverse title followed by prescription.31 In Gardner v Scott,32 Lord Fullerton stated:33

[I]t is true that where a party grants a disposition with a double manner of holding ... the disponee has the option of holding by a base or a public infeftment. It is with him to choose either, so long as no other completed right intervenes. In any question with the grantee of such a right, the grantee is bound to throw no obstacle in the way of completing the right granted by himself.

This will be a mystery to those unfamiliar with the feudal system of landholding. In Swan’s Trs v The Muirkirk Iron Co34 the right to use a watercourse as a navigable canal was res merae.

Leck v Charmers35 involved a dispute about the use of a common stair. In 1812 a tenement of land in Trongate, Glasgow was disponed and the deed provided that the disposers and disponees intended to erect an outside staircase to access the upper storeys. The ground on which the staircase was to be erected was held pro indiviso, maintained at mutual expense and it was foreseen that both parties would use the stair. The defenders averred that they had had exclusive use of the stair for 40 years and sought to exclude the pursuers from using it. The court held that one co-proprietor could not exclude the other from the use of such a stair. In his decision, Lord Cowan said:36

Mere discontinuance to use and enjoy his property or its consequent for a hundred years, or any period, could not prevent the right being asserted at any time, so long as no adverse right has been reared up to its prejudice.... The joint right of the pursuers to use this staircase ... was, in truth, capable, at any distance of time, to be resumed and asserted…. The precise character of the legal right thus contended to have been acquired by the defenders is not very clearly stated in the record, but was explained by their senior counsel to be that of servitude. What kind of servitude could thus be raised up I am at some loss to understand…. [His Lordship notes that property cannot be lost simply by non use, but mentions another title followed by prescriptive possession] The right of the pursuers was, in truth, res merae facultatis capable at any distance of time to be resumed and asserted.

In Gellatly v Arrol37 a tenement was conveyed in different storeys. The upper storeys were reached by a common stair, but the titles reserved the right in the proprietor of the ground storey to open up and use a door which already existed from the common stair and this right was res merae. Some of the judicial observations are useful. Lord Benholme:38

Now I think that a right thus originally vested in the proprietor of this lower storey is, and can never be held as derelinquished; but that he should be held at any time entitled, in terms of the titles of both parties, to revert to the exercise of the original right of access.

Lord Neaves:39

It is certain that the rugby of a party to make operations in suo never can be lost non utendo; and the question here is, strictly speaking, as to operation of that kind. It regards the right of the pursuer to open a door in his own wall, so as to give him physical access to the common stair.... This seems to me clearly to be res merae facultatis. It has been kept up in the titles, and still belongs to him as an accessory of his property.

Finally, Lord Justice-Clerk Inglis:40

[A]ssuming that there is a door-way, the reserved right to open it is res marae facultatis, to which negative prescription is inapplicable.

In Sutherland v Thomson41 the proprietor of land through which there was a right of way was held entitled to erect gates over the route provided they did not constitute an obstruction.42

In Smith v Stewart43 the litigation arose out of the terms of a document described as a “Bond of Servitude” dated 1825 which was related to a piece of ground between two properties. The Bond contained the following provisions:

[R]estricting us and our assignees ... from building nearer to the garden wall belonging to the said John Baxter ... than twenty feet ... hereby grant to the said John Baxter ... full power and liberty to use the said space of twenty feet as a road or entry ... and to open up a passage or entry not exceeding ten feet wide in [said] dyke.

The litigation arose more than 40 years later (which at that time was the period of the long negative prescription). The pursuers argued that the right had prescribed, but this was rejected by the First Division. Lord President Inglis, with whom the other judges agreed, said:44

It appears to me that the provision in Mr Baxter’s favour entitled him to use the strip ... as an entry ... whether it was to be made into a street or not. There was no restriction as to the time within which the privilege was to be exercised…. But how is it possible to say that such a right ... can be lost by negative prescription? The right is clearly of the nature of a res merae facultatis – a right which is to be used in the future when occasion arises and is of such a nature as has never been held to fall under the negative prescription.

Rankine describes the decision as “narrow.”45 Two sheriff court decisions applied Smith v Stewart, – Mitchell v Brown46 and Crumley v Lawson.47 In Mitchell, Sheriff Guthrie (the editor of the 10th edition of Bell Principles) commented on res merae, saying, “It may be thought that the doctrine has been borrowed from some civilians without sufficient consideration or definition.”48

The final case prior to Peart v Legge49 is Anderson v Robertson50 in which it was held that a lower proprietor whose land was damaged by surface water coming from the land of an upper proprietor because that proprietor had filled in a ditch had no ground of action as the right to fill in the ditch was res merae.51 There is a list of cases on res merae in Walker on Prescription and Limitation of Actions.52 A South African case is mentioned in Voet53 and in that case, it was submitted by counsel that the right to have a veranda over a public road was res merae.54

In Peart v Legge,55 the parties owned neighbouring irregularly-shaped pieces of ground. There was a dispute about access. In 1981, the defender’s father acquired ground from the Marquis of Lothian, and that ground was separated by a stone wall from a track owned by the Marquis. The 1981 deed included an express right of access over ground owned by the Marquis and a right to breach the wall, subject to certain conditions. In 1997, the Marquis sold the ground to the pursuer, but that was subject to the right of access in the 1981 deed. No attempt had been made since 1981 to take access, nor had the wall been breached. The court rejected an argument that the right to breach the wall was res merae.

Having examined some of the cases cited above, Johnston concludes that res merae is a property right and it does not impose any obligation on any other party,56 a comment with which David Carey Miller agrees.57 However, both Kames and Hume mention that, in some cases, there is an obligation on others. Thus Kames in the passage cited above says, “that personal Powers or Faculties, such as Faculties to burden, to alter or innovate, to revoke, &c. though inferring a Burden upon others, are not lost non utendo.”58 Hume’s position is that, “in some instances,”59 the right does not impose any obligation on others. Furthermore, having quoted the passage from Johnston, the court in Peart observed, “the present case (like Smith v Stewart) cannot be said to involve a right whose exercise implies no claim against the rights of another; any right of access over the property of another implies such a claim.”60 If one considers cases such as Gellatly,61 Leck62 and Smith v Stewart,63 while the issue was whether the rights had prescribed, I submit that in Gellatly and Leck, it would not have been open to the other co-proprietor to do something to frustrate the right of access to the common stair and in Smith, the adjoining proprietor would not have been entitled to dig up the route over which the road might have gone, or to build over it.

Against that background, the purpose of this article is to give examples of rights which, in my view, are res merae facultatis and do impose an obligation on someone else. There are, to my mind a number of rights which look like servitudes, but are not. In Servitudes and Rights of Way,64 we mention some of these rights and have a question mark against them, largely because at the time of writing in 1998 there were no reported cases settling matters one way or another. The two main rights which I want to address are access to a neighbour’s property and fire escape. I will also suggest some further possible examples of res merae.

D. Examples of Res Merae Facultatis Imposing Obligations

(1) Access to a neighbour’s property

I have been unable to find any reported Scottish case where the issue of whether one has a right to access a neighbour’s property was decided. That may be because in most instances, neighbours will be accommodating to reasonable requests. That said, in April 2014, The Times reported the results of a survey carried out by Yale, the home security company, which revealed that one in three stated that they did not get on with their neighbours, and for one in seven, things were so bad that they had decided to move house.65 However, for whatever reason, the matter, if litigated in Scotland, has not been reported. There is a plethora of cases, reported and not, about ownership of, or access over tiny strips of ground. (The lengths to which neighbours are prepared to go (as a matter of principle) over such matters brings only joy to a lawyer’s heart, provided always that funds for payment are available.)

To start, here is a simple example. During high winds, A’s dustbin lid is blown into the neighbour’s garden. It would seem strange to say that A does not have the right to enter the garden to recover the bin lid. Should the neighbour seek to prevent recovery, that would be theft, and so I would suggest that there is an obligation on the neighbour either to assist recovery, or least not to obstruct it. In Roman law, a neighbour could be interdicted from refusing to allow A to recover fruits which had fallen from A’s tree into the neighbour B’s property.66 It also permitted a person to access a neighbour’s property to recover trees which had blown down.67 The access required in such cases is for a limited purpose and a limited period. Removing the football from the remains of the glasshouse is another example.

However, access to a neighbour’s property might be required in circumstances where the access might have to be combined with some form of “parking” as the following example shows. Let us assume that in the high winds, the roof of A’s garden shed is blown into the neighbour’s garden. Whether the roof is intact or not, it is unlikely that A will manage to remove the roof without using, for example, a wheelbarrow or a trailer to transport the roof back to A’s premises. Other help may also be needed. In these examples, the neighbour will probably be keen for A to remove the items as quickly as possible.

There must be a large numbers of properties where the boundaries are so close together that it would be highly desirable, or in some instances essential, to get access to the adjoining property to carry out inspection and, more important, repair, or perhaps demolition. For example, there might not be sufficient room on a property to put up scaffolding, or use a cherry-picker which may be essential for inspecting, and if necessary repair, say, the pointing. Another situation where access to a neighbouring property would be needed would be where branches of a tree overhang a neighbouring property, and the owner of the tree wishes to cut the tree back, rather than entrust this to the neighbour.

The right, I suggest, can be exercised not only by A, but also by contractors instructed by A. A might not be able to paint the eaves of his house, or do the pointing. Furthermore, I would suggest that A’s contractor would be entitled to leave materials on the neighbour’s property pending completion of the work. For example, it would be unreasonable to argue that scaffolding would have to be dismantled and removed each day. By contrast, it might not be unreasonable to argue that a ladder be removed each day.

A “servitude” of scaffolding erection to repair a wall has been recognised in the Civilian authorities.68 It has long been recognised in mixed legal systems similar to Scotland, e.g. Sri Lanka.69 The right is implied where the location cannot be accessed by other means and the repair is necessary. That is broadly the principle in Moncrieff v Jamieson70 which decided that foreseeability is also needed.

The right of “laddergang” would entitle the owner of one property to rest a ladder on the property of another in order to carry out repairs, maintenance, or renewal of parts of the “dominant” subjects. In the title on Conveyancing in the Stair Memorial Encyclopaedia,71 mention is made of a letter in the Workshop section of the The Journal of the Law Society of Scotland which mentions this “servitude.”72 It is stated to be common in the Dumfries area to find a provision in the titles of buildings which are divided horizontally to the effect that the owner of one property may rest a ladder on another in order to paint or clean windows. As the author of the title observes, there is no reported case on the point and he also suggests that the true test of whether a right exists would arise in a situation in which there was no provision in the titles of the “servient” tenement and the right required to be established by means other than express grant. Such a right might be constituted as a real condition in the titles of the servient tenement.73 The only reported case which is close to one involving laddergang is Finlay & Co Ltd v Bain74 where the right claimed became necessary only upon severance of the properties which had originally been in single ownership. Among other things, the defender claimed a right of access over the pursuer’s property in order to inspect and repair the back of his property which, as the report discloses, abutted on to that of the pursuer. The properties were too close to allow this to be done without obtaining access to the other property. Sheriff Principal Cameron (later Lord Cameron) refused interdict and was prepared to recognise the existence of a right of access for these limited purposes. It seems to follow that the limited right might entail the need for a ladder to be placed on the “servient” tenement or, in the case of repointing, scaffolding, moveable or otherwise, might have to be “parked” on the adjoining property. As a matter of principle I would argue that Sheriff Principal Cameron was correct in his opinion, but the principle he laid down would have to be extended in order to make the right to repair the adjoining property effectual.

Other examples would involve subjects such as railway lines where the operator of the track, currently Network Rail, is required by statute to carry out repairs.75 The obligation to carry out repairs includes an obligation to maintain, in good order, fences alongside railway tracks. Network Rail has a right of way over accommodation/occupation roads provided under the Railways Clauses Consolidation (Scotland) Act 1845, s 60. The Railway Regulation Act 1842, s 14 enables Network Rail to apply to the Department for Transport for permission to go on to land near to the railway to make good after an accident or slip has happened, or to take preventive measures if an accident or slip is anticipated. Access can be taken without the Department’s prior consent in cases of necessity.

Another example is a similar obligation imposed on the operators of airports. The Civil Aviation Authority has a right of access at all times to aerodromes.76 The definition of “aerodrome” includes not only the airport buildings, but the surrounding ground.77 Prison walls would be in the same category, as would electricity sub-stations, nuclear power plants and the like. In these examples, the same issue arises about an obligation on the neighbour not to impede this right. In each case, if access was impeded, the operator of the railway, aerodrome etc. would be in breach of a statutory obligation.

A right of access to a neighbouring property to effect repairs is recognised in English law,78 but the matter is now regulated by the Access to Neighbouring Land Act 1972 as amended.79 Under this Act, the court must be satisfied that the proposed works are “reasonably necessary for the preservation of the whole or any part of the dominant land; and that they cannot be carried out, or would be substantially more difficult to carry out, without entry upon the servient land.”80 That said, the court will not make an order for access if the servient proprietor or any other person “would suffer interference with, or disturbance of, his use and enjoyment of the servient land, or that proprietor, or any other person in occupation of the land would suffer hardship.” It is not the purpose of this article to examine this Act in detail, but it is obvious that access will be granted under it only in very limited circumstances. It is, however, equally obvious that the need for such access can be broader than that which the 1992 Act permits, which is access for (a) maintenance, repair or renewal of buildings, (b) the clearance, repair or renewal of drains, sewers, pipes or cables, or (c) the treatment, cutting back, felling, removal or replacement of any hedge, tree shrub which is, or is in danger of becoming, damaged, diseased, dangerous, insecurely rooted or dead. There have been very few cases under the Act.81

In these examples of repairs, there must be some doubt about whether there is any obligation on the neighbour to do anything more than facilitate the work. It may be that scaffolding can rest on a relatively flat part of the neighbour’s ground, but does that prevent the neighbour changing the landscape, with the result that it is more difficult, or even impossible to put scaffolding up? It is one of the features of ownership) that, subject for example to title conditions, planning etc., one can do with one’s property as one wishes. The other proprietor might not be pleased, but on what basis could the neighbour be prevented from doing as he or she wishes?

This right to access a neighbouring property cannot, in my view, be a servitude. It is a right to be exercised only when required. It would be somewhat odd to argue that one would need to point or repair one’s property at least once in 20 years to prevent the right prescribing.

(2) The right of fire-escape

Assume that I own premises which require a fire-escape, but the boundary of my property is so close to the neighbour’s that my fire escape rests thereon. The Fire Regulations require the occupiers of some premises to conduct regular fire alarm tests and “mock” evacuations. Not all occupiers are required to do so and, accordingly, there will be a large number of properties with fire escapes which will be used only when required. Again, it would be absurd to suggest that there would need to be a fire at least every twenty years to stop the right prescribing. The right therefore is res merae facultatis and so it would not prescribe. So far, this is not so different from the other examples of access to neighbouring properties. However! I would suggest that, in this example, there is an obligation on the adjoining proprietor not to interfere with the fire escape, for example by undermining the foundations. Interference would have the consequence of putting the owner of the premises with the fire escape in breach of the Planning and Building Regulations. In the most recent case involving a fire escape,82 the Court held that a servitude of projection and support existed in Scots Law. It is submitted that these rights are res merae facultatis in that it would not be open to the “affected” proprietor to remove the projection, or support, even if the fire-escape had not been used for 20 years.

(3) Other examples

Three other examples will be suggested here. One example is a “servitude” which is used only occasionally. In Durham v Briggs,83 the court held that a servitude to water cattle in time of “great frost or drought” had been established by usage. While it is unlikely in Scotland that either weather condition would not be seen for 20 years, such a right is, without doubt, a servitude, as would be a right of pasturage used, say, only in summer. Nevertheless, the following example may be one where the right is res merae, rather than a servitude. Assume that I have the right to draw water from A’s well, but also a right to draw from B’s well, but only if the supply from A’s well is either not available or not adequate. Twenty years might pass, during which time A’s well has proved to be fit for purpose. If, however, in year 22, there is a severe drought, my right to draw from B’s well, I would submit, cannot have prescribed despite its not having been required up to that point. A right to make up title to a property, I would suggest, is res merae. Finally, a right to access a property. In Bowers v Kennedy84 it was argued that the right of access in that case was res merae, but the Court did not accept that and held that the access right had prescribed. Nevertheless, it did say that access to a property is an incident of ownership85 and I would submit that the right is also res merae.

E. Conclusions

(i) A res merae facultatis is a property right which does not prescribe.

(ii) It can be a right in respect of one’s own property, or over another property.

(iii) Like a servitude, it can be constituted expressly or by Act of Parliament, but it cannot be constituted by other methods by which a servitude may be, such as implied grant or acquiescence. In the case of neighbouring properties, it can be created by implication.

(iv) It is not open to parties to provide that a right is res merae (because it is not possible to contract out of ss 6-8 of the 1973 Act),86 but a right which is described, say, as a servitude, may nevertheless be res merae.

(v) Where the right is in respect of another property, the proprietor of that property is under an obligation not to impede the exercise of that right, in the parlance of servitudes “patiendo.”

(vi) While a right which is res merae does not prescribe, it can be discharged expressly, or lost in other ways, such as abandonment, or acquiescence, or where another person acquires by positive prescription a right which is inconsistent with the continued existence of the res merae.