Free Fuel for Heating: the Scots Law

I was raised in the last house on our road to be built with a fireplace.?Ever since I was a lad, seeing houses built without hearths seemed one of the various aspects of modern Scots architecture that was foolish, and sad.?How shall we talk to some late hour, without the fire of turf of the ancient tower??

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Or if not peats, then coal, or logs.?How to come by them??A servitude is one way; rights to take coal and to cut peats are on the list of servitudes known to the law: Harvie v. Stewart, (1870) 9 M. 129 and Stair, II, 7, 13.?(For coal, that’s the common law, somewhat altered by the Coal Industry Nationalisation Act 1946 and the Coal Industry Act 1994).

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But there’s nothing like a log fire.?These days, we hear much talk of planting trees?-?though they say the best time to plant one is twenty years ago.?The same is true if you want to obtain a servitude by open, peaceable and uninterrupted usage?-?the best time to start is twenty years ago: see the Prescription and Limitation (Scotland) Act 1973, section 3.?What about a servitude to take firewood?

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Rankine thought not: Land-ownership (4th edtn., 1909).?He objected that a servitude cannot depend on positive action by the burdened owner: see Paulus on Sabinus, Book XV; Justinian’s Digest at VIII, 2, 28 (if we’re still interested in what Roman law has done for us).?Rankine plainly implied that the existence of a wood is a product of human action.?

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Well, that is a large question.?What makes a wood??The answer can be either providence, or the hand of man?-?or both, as where a wildwood is fenced against grazing?-?or where a man-made plantation is maintained by self-seeding.?By far the greater proportion of Scotland’s woods are plantation.?Myths aside, both the Lowlands and the Highlands may have been largely de-forested even before the Romans came: on this and much else here, see Professor Christopher Smout et al., History of the Native Woodlands of Scotland (2005).?Perhaps 4% of the country is in any sense ‘wildwood’?-?so Rankine can be forgiven for thinking of a wood as an artefact.?But to the extent that nature creates woods, his argument against a servitude surely fails.?Pasture may be sown, but that doesn’t stop us recognizing the servitude of grazing livestock.?Still, Rankine might be applied in this way: to disallow taking planted timber, but allow taking what is naturally seeded.?Yet a distinction dependent on knowing how a given tree came to be where it is surely unworkable.?Where a land-owner planted a block of spruce, say thirty years ago, we might sympathize with his distaste at a neighbour’s hauling the timber away?-?after all, trees aside, there is surely no servitude right to take part of another man’s agricultural crop.?(Paulus, On Plautius, Book XV: “A servitude cannot be imposed permitting us to pick apples”?-?in the Digest at VIII, 1, 8, if we’re still interested … )?But erected into a legal principle, such sympathy would have to apply equally in, say, a two-hundred-year-old beech-wood, half of which might be original plantation but half of it younger, self-seeded trees?-?where who shall say what was planted and what was not??A modern forestry undertaking is well protected by the unlikelihood of its either granting express servitudes, or acquiescing in a neighbour removing timber openly and peaceably for twenty years.

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However, Rankine is not alone.?Neither Professor Duncan’s contribution on servitudes in the Stair Memorial Encyclopaedia, nor Gordon & Wortley on Land Law (3rd edtn.), nor the editors of Gloag & Henderson (15th edtn.) list such a servitude.?All speak of ‘fuel, feal and divot’ as embracing only peat?-?as does Ross on Servitudes.

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But more authoritative sources do indeed count “cutting timber” as a servitude: Bell’s Principles and Hume’s Lectures.

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Cusine & Paisley judiciously consider both the servitude’s existence and Rankine’s logic to be moot points (Servitudes and Rights of Way)?Their useful label for rights to take things away is ‘extractive servitudes’?-?which along with pasturage and peats, can also embrace water, stone, heather, and sea-weed and flotsam (if not jetsam) (‘wrack and ware’).?Extractive servitudes honour the principle that the burdened proprietor need do nothing; he is simply obliged to suffer the thing to be taken, insofar as it is present.

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So, where there are trees, there might be such a servitude.?And it has in fact been known to the law since at least 27 November 1734, when in Garden of Bellamore v. Earl of Aboyne, M. 14,517,

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“One having given by a writ under his hand, liberty and privilege to a neighbouring heritor to cut timber in his woods, for the use of the neighbouring heritor’s lands and tenantry, the Lords found this a real servitude, and good with possession against singular successors” ?-?see also M. 10,275; n.b. Paisley, Rights Ancillary to Servitudes (2022), para. 3-105, footnote 946, & para. 6-052, footnote 322 provide references to the case papers in the National Records of Scotland.

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Rankine tried to distinguish Garden as a case about coppicing?-?but there is nothing in the record to justify that: see again Cusine & Paisley. Consistently with Garden, a century later in Harvie Lord Deas said that ‘fuel, feal and divot’ could embrace not only coal but also “any other fuel”.

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Nor does the case for the servitude end there.?Professor Smout and his co-authors tell us that servitudes to take timber are in fact commonly encountered before the eighteenth century.?To take just one of their examples?-?from as far west as the law’s writ ran?-?though disputed at times, the procurement of birlinn-building timber from Kintail and Knoydart by the MacDonalds of Sleat from at least the sixteenth century, seems by the eighteenth century to have been recognised as a servitude.

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What in broad terms Smout recounts is that the recognition of such rights became rarer, as the proportion of plantation increased relative to wildwood; the land-owners who from the eighteenth century began planting broad-leaved shelter-belts?-?which as an adornment of our landscapes we risk taking for granted?-?naturally valued their creations over those of providence.?

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At the Bush in Midlothian in the 1760s, Archibald Trotter was reminding his tenants that, for a third offence of damaging plantation trees, the penalty was death: A.P.S. ii, 343, c. 8; James V, 1535?-?though tillers of the soil who were caught giving vent to their remarkably widespread antipathy to the new woods seem in practice to have got away with a whipping at the door of Edinburgh’s Tolbooth: John Abernethy, Annals of the Bush (1930).?

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Better transport and the demands of mining and industrialization raised timber’s value, prompting the improving land-owners to protect it ?-?contemporaneously with the growth of agricultural populations, some of whom had long-inherited ideas of customary rights to free timber.?

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The result was litigation about what the dominant owner or his tenants could take, for what purposes?-?such as that on Deeside between Lord Braco and the Farquharsons of Invercauld in 1760 (Smout again).?But the de quo was that taking timber could be a servitude.?Advantages have accrued to us all from the growing protection of absolute land-ownership in the Age of Improvement, but the fact that customary rights lost this particular battle or that, does not mean that the servitude was abolished by desuetude?-?even assuming that that is possible (though the servitudes of bleaching and lint-steeping are perhaps now on life-support).

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The conclusion is that the servitude of taking timber from woodland has long been known to the law.

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For what purposes may timber be taken??In line with the general principles of servitudes, the legitimate purposes are of course limited to the praedial or non-commercial needs of the dominant land, whether that is for timber for building, or firewood for burning.

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From where may timber be taken??There are various positive servitudes which do not entail that the dominant owner can unilaterally choose where on the burdened property his right is to be exercised.?For instance, with pasturage or grazing, or a right of way, the burdened owner retains some power to tell his neighbour where he may graze, or what route he shall take over the burdened ground.?The servitude of parking a vehicle may be another example: Lothian Amusements Ltd v. The Kiln’s Development Ltd., [2019] C.S.O.H. 51.?

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Professor Smout and his co-authors record the same issue in dispute at Monaltry on Deeside in 1773.?Tenants of the lands of the attainted Jacobite Earl of Mar sought to exercise servitude rights to take timber from the Earl of Fife’s pine-woods, which extended to within a mile of them, but were required by his factor to do so only from the remotest, furthest part of the burdened lands?-?ten or twelves miles distant.?

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However, whether or not such directions accord with the law, the further off the burdened owner may send his benefited neighbour, the stronger the argument that in order to be effective, the servitude must also involves rights of passage?-?in 1773 for beasts of burden, but maybe today for vehicles: on this topic, see generally Paisley, Rights Ancillary to Servitudes (2022).

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What timber may be taken??Broadly there are three kinds.?First, there is timber that has fallen.?Secondly, depending on the species, there is timber that may be taken by pollarding or coppicing.?Coppicing was once much practiced, and is enjoying a resurgence for bio-fuels.?Thirdly, there is the felling of living trees.?The inherent restriction to exercise civiliter may mean that, as far as suffices for the dominant owner’s reasonable needs, he must choose the method which is least prejudicial.?

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What an express grant permits depends of course on its terms.?As for constitution by prescriptive possession, the nature of the usage will define the nature of the right?-?but in practice a right to take lying timber seems likelier.?After all, however openly and peaceably you go about coppicing or felling another man’s standing trees, it seems unlikely that you that will be able to carry on for twenty years without judicial interruption.

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That leaves lying timber.?This includes the commonplace of what has long since been felled, only to be left?-?and of course windblow or windfall.?Those sound like mere scraps for scavengers.?But in practice they can be the optimal timber, at least for firewood; long-seasoned, ready without the hazard or cost of felling.?I once heard a witness being challenged that felled timber long left lying must be water-logged and undesirable, and I wondered whether the cross-examiner had a fire-place. ?

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Beech and ash make the best firewood?-?and some even burn conifer logs?-?but on the ground oak and sweet chestnut last longest.?For instance, in the mid-nineteenth century Lord President John Inglis had an oak planted, on whose fallen trunk a century later my mother was photographed, pregnant with me?-?a tree trunk which was cut up as fine fire-wood when I was forty years old.?In the 1850s John Inglis re-planted John Trotter’s Midlothian woods, including a great chestnut which came down in the 1960s?-?certainly not later than the Great Gale, which you may recall blowing on 15 January 1968 (what today is called ‘climate change’).?I could show you the trunk where it still lies today, and its wood would warm a man well, were he so ill-bred as to take a blade to such a survivor.?

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Depending on the age of the tree (older trees have more durable heartwood), the species, how it lies, and how damp the ground, fallen timber may dry and season wonderfully.?Athenaeus was right: ‘Old wine to drink, old books to read, old friends to trust, old wood to burn.’

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To conclude: here we have talk of cases from 1743 and 1870, and of Hume and Bell?-?is this topical??-?or is it sterile antiquarianism??It can be hard to advise clients what the bench will think of eighteenth-century cases, or the practice of even earlier centuries.?Like many people throughout human history, some of our fellows think that we are living in uniquely modern times?-?such that right, wrong and human needs are so changed, that one sees case-law from only 25 years ago questioned purely on the ground that it is old.?What value then has a precedent that has stood for nigh 280 years??After all, the only thing that’s certain about the past is this: it isn’t coming back?-?is it??

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Others think our forefathers knew a thing or too.?A prescriptive servitude right to take firewood might be a useful relief against rising heating bills.?They say ‘firewood warms you twice’.?But that’s not the half of it; what with cutting, hauling, splitting and stacking, it warms you at least five times.?

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As/

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As with other energy policies, all you need is to start twenty years ago.

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The author thanks Dr. Elspeth Macdonald,?M.I.C.For., and John Stirling, W.S., for their comments on drafts of this article, responsibility for all errors in which is nonetheless his own.

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[For brevity page references to texts have been largely omitted; Mr. Upton would be happy to provide them on request.]

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Michael Upton, F.C.I.Arb., F.S.A.Scot., is an Advocate & Arbitrator