The M74 motorway construction project is no doubt a feat of modern engineering. However, despite the multi-hundreds of millions of pounds price-tag and cutting edge engineering, an ancient Scots property right has caused headaches for the Scottish Government.
The recent case of Hamilton v The Scottish Ministers  CSOH 121 examined the servitude right of drainage. Broadly, a servitude is a right affecting one person’s property to the benefit of another’s, and the roots of the law can be traced back to Roman times. In the Hamilton case, the right in question was that to allow water to drain onto an adjacent piece of land owned by the Scottish Ministers, and forming part of the M74 upgrade.
The eponymous Mr. Hamilton raised the action in order to force the Scottish Ministers to carry out corrective work, standing that the then-new motorway had negatively impacted the natural drainage of water from Mr. Hamilton’s adjacent farmland.
What is of particular note in this case is that the various authorities that the judge made reference to are fairly old – legal textbooks first printed in the 18th and 19th Century, and previous court decisions that were at least 100 years old. This goes some way to demonstrating how central, and ordinarily immutable, concepts of servitudes are to Scots property law.
Having said this, the Court was clear that it would take into account not only ancient and settled law, but the actions of the party seeking to enjoy the right. The Court pointed out that the right of drainage is “subject to equitable regulation by the Court if [the party asserting the right] should unduly press his right to the injury of the [other party]” (para. 8).
In this case, it was held that Mr. Hamilton was not ‘unduly pressing his right’ and, accordingly, the Scottish Ministers would have to find some reasonable solution to his drainage issues.
Notably, servitudes can be created without any formal written documents. It is therefore perfectly possible for someone to acquire land – whether it be for a multi-million pound road development, or a new home – only to find that they have to do, or refrain from doing, certain things on that land.
If you require any advice on servitudes, or other aspects of Scots property law, our expert Property Litigation solicitors would be happy to help. If you require advice, please contact us. This article is for general information only, and should not be taken as legal advice.