The appellant (J) appealed against a decision (2005 1 S.C. 281) that a right of vehicular access from a public road included a right to park on the servient tenement such vehicles as were reasonably incidental to the enjoyment of access to the dominant tenement.
The respondents (M) owned a property situated between the foot of a steep escarpment and the foreshore.
The effect of that conveyance was to confer a servitude right of access to the property from the public road for both pedestrian and vehicular traffic; and a right to stop vehicles on the servient tenement in order to turn, load and unload goods from them and set down and pick up passengers was accessory to the right of vehicular access.
J submitted that it was not possible in the law of Scotland for there to be a servitude of parking; a permanent interdict was unnecessary and its terms were too uncertain to enable J to know what was prohibited by it.
The House of Lords recognised that easements must always be exercised civiliter (without amounting to exclusive possession over the servient land), but the House of Lords displayed a more sympathetic attitude to easements that substantially exclude the servient owner.