Scottish Court of Session Decisions

David Laurie, of Laurieston, was proprietor of some ground in the suburbs of Glasgow, which he disponed in building-feus, according to a plan. It was bounded on the east by Portland Street, and on the west by ground retained in Laurie's own possession. He feued out the contiguous lots, Numbers V., VI., and VII., under one feu-contract, to John Christie, builder. On the north and south these steadings were bounded by other steadings for building, in the same line of street. The front of the houses to be built was towards the east, and they formed part of the line of Portland Street. It was agreed that none of the fulzie, &c. of the houses should be carried into Portland Street, but should be removed through the back ground retained by Laurie, and forming the west boundary of the steadings. That ground extended back to a street called Eglinton Street; and the steadings or plots of ground were disponed “together with the free ish and entry to the said several plots of ground by Portland Street on the east, and by the passage or lane on the west after-mentioned.” In reference to this, Laurie bound himself to “make and form a cart-entry of not less than fifteen feet wide, leading from Eglinton Street to the steadings thereby feued, and that through his grounds on the west of the said steadings, and that as nearly opposite the centre as possible of steading Number VI., above-described, for the removal of dung, fulzie, or ashes, from the said three steadings.” It was also provided “that none of the dung or fulzie should be carried out by or through Portland Street, but by the back lane or entry aforesaid connected therewith, leading into Eglinton Street.” The lot Number VI., opposite to the centre of which this back lane was to run, lay between lots V. and VII. The feu-duty payable for lot V. was £29, 10s. 4d.; for each of lots VI. and VII. (which were about one foot smaller in front), the feu-duty was £28, 16s. 3d.

There were provisions in the contract requiring houses of four square stories in height, to be erected within a given time, of sufficient value to yield a rent of double the amount of the feu-duties. It was also declared that Laurie “should not be at liberty to erect any houses on the ground belonging to him, on the west of the steadings thereby disponed, of a greater height than twenty feet, within twenty feet of the said steadings, and the said John Christie should be under similar obligations in regard to the back ground of the steadings thereby disponed.”

Laurie built two houses on the lot of ground, Number V., one of which he sold to Andrew M'Culloch, and the other to John Monteith. Laurie formed a lane from Eglinton Street to the centre of the lot Number VI., but he refused to carry that lane upon his ground to the back of the contiguous lots, Numbers V. and VII.

M'Culloch and Monteith raised an action against him, to have it found that he was liable to make a lane upon his own ground of fifteen feet in width, from the point in the centre of the back of lot VI., where the present lane stopped, to each of the other lots, V. and VII. The action also concluded for damages.

In support of their action they pleaded—That as it was always contemplated that each of the steadings was to be a separate lot, it was the intention to provide a back-entry to each independently of the other; the words of the contract imported this, and provided an entry to all the three steadings; and the feu-duty for lot VI. would have been less than for either of the other two if it had been to be burdened with so disagreeable a servitude in their favour as a back lane leading through it to the central point where the defender had terminated the lane from Eglinton Street. Though there was a prohibition against Laurie's erecting buildings of a certain height within twenty feet of the back boundary of the steadings, that was not inconsistent with the provision of a lane of fifteen feet being there, especially as the same restriction was also imposed on the ground forming the back part of the steadings themselves. It was merely a regulation to prevent obstruction of light and air in that quarter in all time coming.

The defender answered—

That as the three lots were feued to one individual, and a back lane was carried down to the middle of the central lot, this was ample provision for the whole three, as the middle lot should be burdened by the feuar with a servitude of passage in favour of the others. This was the intention of parties, and it was adequately stated in the feu-contract, where the steading of the pursuer was specially described as bounded on the west by the back ground of the defender, without mention of any back lane being to be carried there. And, if a lane of fifteen feet was to be carried there, the provision that houses of a certain height should not be built on the defender's back ground within twenty feet of the boundary, could not have been expressed as it was.

The Lord Ordinary “found and declared, ^* that the defender is bound

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^* “ Note.—It appears from the feu-contract, that the three steadings, or plots, Numbers V., VI., and VII., are feued as separate tenements; separate feu-duties and casualties being stipulated for each; and it is expressly agreed, that free ish and entry shall be given to the said several plots by Portland Street on the east, and by the passage or lane on the west to Eglinton Street. The buildings on all the plots are required to be similar in height, plan, and design, and not inferior in elegance to the houses on the opposite side of Portland Street. The owners or occupants of these houses are prohibited to carry out their dung or fuilzie by or through Portland Street; and they are bound to do so by the back lane or entry leading to Eglinton Street, It appears to the Lord Ordinary, from these and other provisions in the feu-contract, that it was the intention of the parties that the houses on the plots, V., VI., and VII., should have each a cart access afforded by the defender, through his own ground, to connect them with Eglinton Street, or to the lane which runs from the centre of plot VI. to Eglinton Street. It is quite clear, and is admitted, that it was in the contemplation of parties that Christie, the first feuar, who is a builder, should dispose of the three plots separately, and if, as the defender maintains, the proprietors of plots V. and VII. were to carry out their ashes, &c. by a cart road made through plot VI, it is presumable that a servitude of so severe and disagreeable a nature would have been alluded to in the contract, that the purchaser of plot VI. might have been put upon his guard. The feu-duties of plots VI. and VII., which are precisely of the same dimensions, are the same; and the feu-duty of plot V., which is a foot in front larger, is a few shillings more; but, if plot VI. was to be burdened with a servitude of this nature, by which its available extent and value would have been so much diminished, it cannot well be doubted that there would have been a proportional deduction of the feu-duty, more especially as the buildings on each plot were required to be such as would yield a rent double the feu-duty of each.

“The defender relles on the clause by which he is restricted from erecting houses on his ground, ‘to the west of the plots or steadings disponed, of a greater height than twenty feet, within twenty feet of the said steadings.’ But, looking at the whole tenor of the contract, that prohibition does not infer a permission to erect buildings of a less height within fifteen feet, and up to the west boundary of the steadings.

“In the Lord Ordinary's opinion, the defender's construction of the feu-contract is equally at variance with its words and its spirit.”