Disputes over access along shared tracks and private roads are common in Scotland, particularly in rural settings. For landowners, estates, developers and those involved in land management, the Sheriff Appeal Court’s (“the Court”) decision in Smith and another v Lednor and another [2026] SAC (Civ) 40 gives helpful guidance on two practical issues.
These issues often arise in rural property disputes in Scotland and acts as a useful reminder of what the court will, and will not, do where access rights are challenged.
The case concerned a dispute over access rights across a private route serving a farm near Nairn. Following their purchase of the farm in 2022, the respondents sought to formalise an expanded right of access in the Land Register on the basis of long use and also obtained a perpetual interdict at first instance to prevent interference with that right. On appeal, the Court was asked to consider both whether an interdict was justified on the facts, and whether the title sheet accurately described the legal basis of the servitude.
The Court firstly looked at whether they could grant a perpetual interdict to protect a servitude right, such as a right of access over a track or private road and secondly reviewed if the servitude the interdict sought to protect was accurately described in the Land Register, including the correct legal basis on which it was created.
The two main issues
The dispute between the parties centred on two points:
- when a perpetual interdict can be granted to stop interference with a servitude right; and
- whether a title sheet was inaccurate in stating that a servitude had been created by prescription, when it had been granted in a deed and later strengthened by duration of use.
Perpetual interdict: looking to the future, not the past
At first instance, the sheriff granted a perpetual interdict to prevent the appellants from interfering with the respondents’ pedestrian and vehicular access rights. That decision was based on a number of incidents which the sheriff considered sufficient to justify concern about future interference.
On appeal, however, the Court took a different view, emphasising the long-standing principle from Inverurie Magistrates v Sorrie that an interdict is a preventative remedy. Its purpose is to stop a future wrong from happening. That means it is not enough simply to point to problems in the past. There must either be an ongoing wrong; or a reasonable basis for a party claiming that future interference is likely.
The sheriff had relied in part on Mowi Scotland Ltd v Staniford, but the Court said that case could be distinguished given the facts of the case which involved the respondent (an environmental campaigner and researcher), using a kayak to approach fish farms operated by Mowi to take video footage of the fish and pens, actions from which he was unlikely to desist. In Smith v Lednor, there were no comparable findings showing that future wrongdoing was likely.
The Court also considered whether the conduct of third parties could support the interdict. It decided that it could not, at least not on the evidence available. There was not enough evidence to show a sufficient link between those third parties and the appellants.
In short, the Court held that the past actions founded upon were not enough to justify a perpetual interdict, and nor could the actions of others be relied on without clear evidence of knowledge, involvement or complicity on the part of the person against whom the interdict was sought.
Prescription: created by deed, strengthened by long use
The second issue concerned how the servitude had been described in the Land Register.
After buying the farm in 2022, the respondents successfully applied to have an expanded servitude right of access recorded in their title on the basis of more than 20 years’ use. The title sheet was amended to contain the following wording “servitude right of access was created by prescription”.
The difficulty was that the servitude had been expressly granted in a 1977 Disposition therefore was created by deed, not by prescription. Long use may have strengthened or “fortified” the right, but it did not create the right in the first instance.
That distinction matters in law, which draws a clear line between:
- a servitude that is created by prescription; and
- a servitude that is created by deed and later supported by prescriptive use.
Although there was no dispute that the servitude existed, the Court made clear that the legal basis of the right still had to be registered correctly in the title sheet. That is important under statute which requires the Land Register to accurately show the rights affecting a property and how those rights were constituted.
The Court therefore had to decide whether the mistake in the title sheet was a manifest inaccuracy. Using Registers of Scotland guidance, the Court noted that a manifest inaccuracy is one that is plainly wrong and not reasonably open to dispute.
On that basis, the Court held that the 2022 title entries were manifestly inaccurate as they stated the servitude had been created by prescription alone, when in fact it had been created by deed.
The case is a useful reminder that what may appear as a technical drafting point in a title sheet may create title issues or rights being challenged in future.
Practical points for landowners and advisers
For anyone considering an interdict to protect access rights, this decision is a helpful warning against relying too heavily on historic incidents alone. A perpetual interdict is concerned with preventing future wrongdoing, not simply responding to what has already happened. Evidence of ongoing interference, or a sound basis for saying that further interference is likely, will be needed.
Where reliance is placed on the conduct of third parties, there must also be evidence linking that conduct to the person against whom the interdict is sought. Without that connection, the court may not be prepared to grant the order.
The case also underlines the importance of ensuring rights contained in a title to a property are correctly described. Even where no-one disputes that a right exists, an inaccurate description of its source or extent may still leave the title open to challenge. Careful checking of historic deeds, title sheets and any application to Registers of Scotland is therefore essential.
Key takeaway
For rural landowners, estates and those managing or developing land, the message is straightforward:
- an interdict will usually only be available where there is a real and evidenced risk of future interference; and
- servitude rights should be registered with care, including the correct legal basis on which they were created.
In a rural context, where access arrangements are often central to the use, value and development of land, both points are worth keeping firmly in mind.
Please contact your usual Brodies contact or a member of the Brodies Rural Business and Natural Capital team if you would like to discuss access rights, servitudes, private road disputes or other rural property issues.
Contributor
Associate
