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    66.  My noble and learned friends, Lord Hope of Craighead and Lord Scott of Foscote, have narrated the transactions and events in Shetland which have brought this issue before the courts. Your Lordships have variously described it as an "unfortunate case", as a "sad one" and as an "unfortunate matter". The parties are, however, adults and the dispute between them is genuine. Since the point at issue is difficult, it is not surprising that they have been unable to resolve it for themselves. In these circumstances they have simply chosen to exercise their right to have it resolved by the courts. Those on one side have decided to spend their own money on doing so; the Legal Aid Board has financed the other side. As a judge, I would not describe the resulting situation as sad or unfortunate: after all, courts exist and judges are paid to resolve such disputes, which are indeed the life blood of the common law.

    67.  Nothing suggests that the sale and conveyance of Da Store to Mrs Stuart in 1973 was anything other than an arm's length commercial transaction. Like anyone else contemplating buying a house, it was up to Mrs Stuart to decide for herself whether Da Store met her requirements. The same applied to the first pursuer's parents when they in turn bought Da Store from Mrs Stuart in 1975. Some problems with the property must have been obvious: for example, it was at the bottom of what amounts to a cliff, it was therefore impossible to take a car on to it or to park on it, you could only get down to it and back up by a steep flight of steps, you would have to carry all your supplies down the steps. For some, the peace and quiet and the views over Sandsound Voe would be compensating advantages. But, for many people, either singly or in combination, the problems would make the property unsuitable, whatever the price. So they would not buy it. On the other hand, for those who could manage and were prepared to put up with the problems, the property might be worth buying at a price that would reflect the minuses as well as the pluses. Mrs Stuart and the first pursuer's parents must have thought so. Despite any problems, the pursuers have lived and raised their family there.

    68.  What matters for present purposes, however, is that, unless by specific agreement, the seller of a house does not warrant that it is suitable for occupation by any particular type of person who he foresees may want to buy the property. If, for instance, he is selling a flat at the top of a four-storey block with no lift, he gives no warranty that it will suit a couple with young children. So parents of young children have only themselves to blame if they buy the flat and then find that they cannot stand the hassle of hauling a baby, a buggy, a fractious older child, a dog and shopping up four flights of stairs. Similarly, an elderly couple cannot complain if they buy a house at the top of a steep hill and then find that they cannot manage the walk up from the bus stop. Houses or flats which are suitable at one stage in our lives may be quite unsuitable at a different stage. If a house turns out to be unsuitable, we cannot blame the seller. It is no business of his. Our only remedy is to move to somewhere that is suitable.

    69.  So, in the present case, Da Store at the bottom of a small cliff with access by a steep flight of steps might well be utterly unsuitable for a couple whose elderly mother was in the habit of babysitting but had difficulty going up and down stairs. Equally obviously, any couple with young children would see the problems in possibly having to leave them unsupervised in a house at the water's edge, while going up and down the steps to get the shopping or other items from the top. Even if the sellers of Da Store could easily foresee that potential buyers might include couples with elderly parents or young children, who would encounter these problems, they would not be held to have given any warranty that the property would be suitable for them. In practice, the obvious problems would tend to restrict the number of potential purchasers in the market. This in turn would tend to lower the price that a purchaser would have to pay for the property.

    70.  All this has to be kept in mind when considering the pursuers' claim to a real right to park on the third defender's land. The disposition from Mr Georgeson to Mrs Stuart in 1973 simply granted her "a right of access from the branch public road through Sandsound." The defenders accept, however, that the access thus granted included vehicular access from the branch public road to a point on what is now the third defender's land near where the steps go down to Da Store. The grant did not define the route by which the access was to be taken. Again, the route is not a matter of dispute: it originally followed an old public road, but that was rather inconvenient and, by agreement of all the parties concerned, it was varied in 1993. Even before that, in 1988, with the third defender's knowledge, the first pursuer, who had acquired Da Store from his parents in 1985, had spent money on creating a small area of hardcore near the gate to Da Store where his car could be turned and parked. In consideration for the first pursuer's consent to the variation of the route in 1993, the defenders agreed that the area of hardcore on the third defender's land should be extended to allow the second pursuer to park her car there. Although the pursuers originally had an alternative claim that, as a result of these and subsequent events, they had acquired a real right to park two cars by reason of the defenders' acquiescence, that claim failed in the courts below and was not renewed before the House. So - perhaps somewhat artificially - the legal issue of the pursuers' right to park has to be considered by reference to the situation in 1973 without reference to these subsequent events. Nevertheless, those events do form part of the background to the appeal and they show that for many years the defenders were quite prepared to go along with a situation where the pursuers parked two cars on the pink area of ground. The defenders also knew that the pursuers had spent money in reliance on that being the situation. Trouble arose only when the third defender wanted to incorporate that area into his garden.

    71.  The Court of Session granted a declarator to the effect, inter alia, that the right of access to Da Store over the third defender's property "has, as an incident thereof, accessory rights over the servient tenement in favour of the dominant tenement (i) to park, on the servient tenement, such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement…." In their written case before this House counsel for the pursuers indicated that, while they were content to put their case on the basis that the right to park on the servient tenement was incidental or accessory to their servitude of access, they did not concede that in Scots law a free-standing servitude right to park on a neighbour's land could not exist.

    72.  Although, therefore, the House is not asked directly to decide whether a servitude of parking can be recognised in Scots law, I doubt whether the question can be avoided. As I understand the declarator pronounced by the Extra Division, it finds that the pursuers, as proprietors of the dominant tenement, have a real right to park vehicles on the servient tenement: whoever owns the dominant tenement with its right of access over the servient tenement has an accessory right to park on the servient tenement. That is nothing other than a description of a servitude of parking. If some doctrine of Scots law would prevent such a servitude right to park being granted expressly and independently, I am unable to see how the right could exist as an incident of the servitude of access.

    73.  While a servitude of parking may seem at first sight to raise issues that relate peculiarly to this day and age, that is scarcely so. In principle, the same point could have arisen with reference to the parking of carriages or wagons under classical and later ancient Roman law, or at any stage between the time of Justinian and today. The problem does not feature in the Digest - but that may just be due to an accident of the compilers' work in reducing the jurists' writings for inclusion in the Digest. Your Lordships were not referred to any later civil law discussion. Certainly, the mere fact that a right equivalent to parking was not recognised as a praedial servitude by Roman law would not, of itself, prevent Scots law from recognising such a servitude, just as it has recognised, for instance, a praedial servitude to take coal and a praedial servitude of fuel, feal and divot, neither of which was recognised by Roman law. Similarly, in regard to bleaching Lord St Leonards LC commented in Dyce v Hay (1852) 1 Macq 305, 312-313, that he entirely agreed with the judges of the Court of Session:

"that there is no rule in the law of Scotland which prevents modern inventions and new operations being governed by old and settled legal principles. Thus, when the art of bleaching came into use, there was nothing in its novelty which should exclude it from the benefit of a servitude or easement, if such servitude or easement on other legal grounds was maintainable. The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind. The law of this country, as well as the law of Scotland, frequently moulds its practical operation without doing any violence to its original principles."

    74.  Even though parking is not a new phenomenon, I would not regard the apparent silence on the matter of the traditional sources of Scots law on servitudes as an indication that such a servitude would be fundamentally alien to Scots law. Ultimately, as with any proposed development of the law, the position must be determined by applying the relevant principles to the situation in Scotland today.

    75.  Looking at the question as a matter of principle, like Lord Scott, I see no reason why a servitude of parking should not be recognised in Scots law. Of course, like any other servitude, it would have to benefit the dominant proprietor in his enjoyment of the dominant tenement. One possible example would be a case, like the present, where he enjoys a servitude of vehicular access to his land but has nowhere to park his car there. The proprietor of the servient tenement could grant him a separate servitude right to park which would contribute to the dominant proprietor's enjoyment of his servitude of access. This would be in line with the decision of Maecianus that the dominant proprietor of a servitude right to pasture animals on his neighbour's land can acquire a separate servitude right to erect a hut on the servient land to protect him from the winter weather while he is looking after his animals there: D.8.3.6.1, Paul 15 ad Plautium. A similar right has been recognised in Scots law: Cusine and Paisley, Servitudes and Rights of Way (1998), paras 3.47 and 3.53. By contrast, for example, the owner of a house and garden could not acquire a servitude right to park cars on his neighbour's land in connexion with a business which he ran elsewhere since this would have nothing to do with his enjoyment of his house and garden.

    76.  Of course, a servitude of parking would involve a car being placed on the neighbour's land and this would prevent the neighbour using that part of his land when the car was stationed there. But that cannot, in itself, be a conclusive objection to the existence of such a servitude since many well-known servitudes involve structures being erected or objects being placed on the servient land. The most obvious example, perhaps, is the servitude of aquaehaustus and aquaeductus, where the dominant owner may construct a permanent dam on the servient land at the source and then lead the water from there through pipes permanently laid over the servient tenement. Another example is the right to erect a hut or bothy on land over which there is a servitude of pasturage. Yet another possible example is the right of bleaching, referred to by the Lord Chancellor in Dyce v Hay, by virtue of which the cloth would be laid out on the servient land from time to time: Cusine and Paisley, Servitudes and Rights of Way, para 3.12. In Roman law Neratius considered that the owner of a quarry could acquire a servitude right to cast rocks and stones on to neighbouring land and to leave them lying there until they could be taken away: D.8.3.3.2, Ulpian 17 ad edictum. Of course, the more the servitude prevents the servient owner from using his land in the normal way, the more he can be expected to charge in return for granting the servitude and, correspondingly, the lower the price that any purchaser will pay for the land burdened with the servitude.

    77.  For these reasons I would not reject the pursuers' claim to have a right to park on the third defender's land on the basis that a servitude of parking cannot be recognised by Scots law. Nor would I reject it on the basis that the specific grant of one servitude can never include the implied grant of another. That would be inconsistent, for example, with the decision of this House in Chalmers Property Investment Co Ltd v Robson 20 June 1967 unreported.

    78.  The case concerned a cottage on Mull which had no public water supply. In terms of her title, however, the owner had a right to draw water for domestic purposes from a "spring or well" on neighbouring land, but without any guarantee as to the sufficiency, purity or suitability of the supply for those purposes; "and for the above purpose to lay and maintain at the expense of my said disponee and her foresaids adequate water pipes for the purpose of withdrawing water for the purposes aforesaid." The owner of the cottage employed a firm, carried on by the man behind the company that owned the land on which the source of water lay, to construct a piped water supply from the source to her cottage. The work was not done satisfactorily and the owner terminated her contract with the firm and employed other contractors to complete the necessary works, which included a dam and settling tank. The company then threatened to remove the entire installation, on the ground that, due to a misdescription of the source of the water in the title, the owner of the cottage had no servitude whatever over its land. She brought proceedings to interdict the company from interfering with her water supply.

    79.  By the time the case reached this House, the contention for the company appears to have been that, even if the misdescription point were rejected - as it was - the settling tank should none the less be removed, on the ground that, in terms of the disposition, the dominant proprietor had no right to do anything more than lay water pipes on its land. Affirming the decision of both the Lord Ordinary (Kissen), 1965 SLT 381, and the First Division (Lord President Clyde, Lord Guthrie and Lord Migdale), 20 May 1966, unreported, the House held unanimously that the company was not entitled to remove the settling tank.

    80.  The company admitted that some kind of dam was necessary to provide a source from which water would flow into the pipe. Lord Reid continued:

"And if it is equally necessary for the enjoyment of the right to draw a domestic water supply from this point that there should be a settling tank, in my opinion the making of such a tank is equally authorised by the grant. The owner of the dominant tenement must not erect works of a size or character beyond what is necessary for the enjoyment of the right granted. But it must have been the intention of the granter of the servitude should have a right to construct on his land such works as were essential to make the servitude effective, and I find nothing in the wording of the grant to prevent that from being done."

Pointing out that the evidence showed that, without the settling tank, the pipes became blocked, Lord Guest put the matter in this way:

"If the respondent was entitled to draw water from the stream and she was entitled to collect the water by means of a dam and to take it by means of pipes for domestic purposes, my view is that the servitude comprehended that she would be given an effective water supply system. Ferguson on The Law of Water, page 264, states the matter thus: 'The principle appears to be that that may be done which is essential to the carrying out of the purpose for which the original servitude was granted….' Without a settling tank the water supply granted by the servitude would be rendered useless as the pipes would be at times blocked. Whether the settling tank be regarded as part of the system of water pipes or as a means of obtaining an effective supply of water, I am clearly of opinion that the appellants cannot object to the presence of the settling tank."

    81.  Although, therefore, the right to construct and maintain a settling tank on the servient land was different from the right to lay pipes on the land, a servitude right to lay pipes could carry with it an implied right to construct a settling tank on the servient land, where the works "were essential to make the servitude effective" (Lord Reid) or were "essential to the carrying out of the purpose for which the original servitude was granted" or were a "means of obtaining an effective supply of water" (Lord Guest).

    82.  These passages indicate the approach which should be applied in a case, such as the present, where an express servitude has been granted and the issue is what, by implication, is authorised by that grant. Applying that approach, I am satisfied that, in principle, the express grant of a servitude of access in the pursuers' title could carry with it an implied right to park on the servient land if this was essential to make the servitude of access effective or to carry out the purpose for which the servitude of access was granted or was a means of obtaining an effective right of access. On that basis, for example, if pedestrian access was to be obtained over many miles of servient land, a right to stop and rest for some time on the servient land might readily be implied. But I see no basis for implying into the grant of a servitude of access, which is effective, further rights simply on the basis that they would be "for the convenient and comfortable use of the property."

    83.  In a very real sense, it can be argued that a right of parking is not essential to make the servitude of access effective or to carry out the purpose for which the servitude of access was granted. For instance, visitors to the property in the shape of postmen, meter readers and others obtain access in their vans by virtue of the servitude without needing to stop for any substantial time. Undoubtedly, also, the owner of Da Store exercises his right of vehicular access when he is driven to the top of the steps by a friend or relative, or in a taxi or post-bus or the local equivalent. He also exercises his right of vehicular access quite effectively when he himself drives to the top of the steps and drops off his things or sets down his passengers with their goods and chattels. On one view, that does not cease to be the case simply because, if no one else will do so for him, he must then park the car some 150 yards away and return to the house on foot. The right to park is not needed for the owner to get vehicular access to his property: it is only needed so that he can remain there with his car at hand until he chooses to leave again in his car. On that approach, a right to park is not a necessary incident of a servitude of access any more than a right to lay up a vessel between voyages is a necessary incident of a public right of navigation: Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1976 SC 161, 166, per Lord Dunpark. As I explain below, but for the sheriff's assessment of the particular circumstances of this case, that is the view which I would favour.

    84.  One alternative view is that, if the owner were obliged to remove his car to a place beyond the third defender's land and to gain ultimate access to his property on foot, the owner could not gain personal access to his property in a vehicle of a kind permitted by the grant and, in the words of Lord Philip, 2005 1 SC 281, 306, para 90:

"His right of vehicular access would therefore, in my view, effectively be defeated. While it is well settled that a grant of a servitude right falls to be construed strictly in order to minimise the burden on the servient tenement, the grant cannot be construed so strictly as to defeat the right granted. It follows that, even if a more stringent test than that of convenience is applicable, it also would be satisfied in the circumstances of this case."

Whether or not Lord Philip's reasoning is correct, it is clear-cut and readily applicable: if, because you cannot park on your own land when you get there, you have to go back, park the car off the servient land and then return on foot, your right of vehicular access is effectively defeated. That would apply in all such cases, whatever the nature of the ground between the dominant property and the parking place and whether or not the intervening country was open and exposed or protected and sheltered. An approach, such as the sheriff's, which relies on those features, is therefore fundamentally different.

    85.  When assessing the rival contentions of the parties, I find it hard to ignore some very ordinary facts of modern life. Especially in cities, there are many flats or houses without any adjacent land on which cars can be parked. That feature is often a significant factor for people when deciding whether to buy the flats or houses and, if so, at what price. Those who own such properties can get to them by car, but are very familiar with the need to drop off their shopping and passengers before trekking off to search for a resident's parking space some streets away. Those with young children and no-one to watch them have to take the children to the parking place and then trail them back home, whether up or down a steep hill, whether through icy rain or in blistering sun. These are simply the inevitable everyday consequences of the owners' decision to buy the house or flat in question. If they find the situation intolerable, they have only themselves to blame. If they can afford to move, they can try to find another suitable house or flat which has parking. Otherwise, they simply have to put up with their predicament.

    86.  Unlike your Lordships, I am, accordingly, utterly unmoved by the supposedly intolerable sufferings of owners of Da Store who might face that dire modern dilemma of leaving their children unsupervised or taking them on foot, back and forward, up or down a significant slope in open and exposed country. But, in reality, their plight is irrelevant. Even if, when granting the servitude of access to Mrs Stuart back in 1973, Mr Georgeson foresaw the tribulations of future car owners with elderly parents and young children, he was no more obliged to provide an access that would be suitable for them than he was obliged to provide a house that would be suitable for them. Purchasers, who know their own requirements, have to think for themselves. That is why only such rights as are "essential" to its effective operation are to be implied into an express grant of a servitude. In other words, before a right is implied, it must be necessary for the effective enjoyment of the servitude of access by anyone at all. If the purchaser wants more, he must negotiate and pay for it and have an appropriate provision inserted in the disposition.

    87.  The pursuers' claim runs up against another significant difficulty. Although the grant of the servitude of access in the first and subsequent dispositions was to the owner or owners, it is accepted that any other residents or lawful visitors to Da Store can use the access. The disposition does not spell out any limit on the numbers of people who can exercise the servitude of access in this way. Usually the absence of any limit on the right causes no difficulty since even a considerable number of cars and other vehicles passing backwards and forwards across the servient land and on to the adjacent subjects at either end will not cause any very great disturbance. So it would be quite normal for members of the family, guests, postmen, tradesmen and others to go backwards and forwards. While postmen and meter readers, for example, will usually pay only a short visit, members of the family and their guests may well stay for a while. Depending on what has to be done, builders, carpenters, electricians and plumbers may also be at the house for days or even weeks. If all these people can park on the dominant land, this traffic still causes no difficulty and can easily be accommodated within the usual right of access.

    88.  But the position is much more difficult where parking is not available on the dominant tenement. On the hypothesis that the right to park is essential to the effective exercise of the right of access, one would expect that all those who could have access to the dominant property across the servient land would also be able to park on the servient land if they wanted to and if space were available. So all the residents, guests and tradesmen would be able to park on the servient land for as long as they had a legitimate reason to be in the dominant property. The contrast with the position of urban tradesmen, who routinely have to park streets away, could not be more stark. Alternatively, perhaps, some limit on the number of persons who could claim to park on the servient land would simultaneously limit the number of people who could enjoy the right of access and its necessary ancillary right of parking. But that smacks of the tail wagging the dog. I remain unclear whether either of these approaches or some other approach is said to be correct. It follows that the scope of the implied right remains uncertain.

    89.  Prima facie the problem is not confined to a situation, such as the present, where there is no parking at all on the dominant land. Suppose that there is room for parking one car there but, quite foreseeably, the family has two cars. By granting the right of vehicular access to such a property, is the servient owner taken to have impliedly granted the dominant proprietors the right to park the second car on the servient land, on the basis that this is reasonably necessary for their enjoyment of the servitude of access and the nearest alternative parking is up a slope some 150 yards away? If the pursuers' submissions are accepted, it is hard to see why not. The same would seem to apply on Lord Philip's approach.

    90.  The extraordinary result of the pursuers' submissions therefore seems to be that, if you are lucky enough to have a servitude of access to your house which has no parking or only limited parking, you get free parking on the servient owner's land because any other solution, involving parking up a slope some 150 yards away, would be intolerably inconvenient for you, whereas, if you reach the same home via a public road, everyone accepts that you must just gird your loins and traipse off to find a parking space elsewhere.