Scottish Court of Session Decisions

The question in this case arose between a superior and his vassal, as to the right of the former to occupy with buildings and enclosures the solum of a projected street which formed one of the boundaries of the vassal's feu. In June 1864 the defender Mr Field feued to Thomas Bernard “All and Whole that area of ground containing 27 poles imperial measure, being part of my property of Bowling-green, Leith, bounded as follows:—on the north by the area of ground feued by me to Andrew Morton, ironfounder, and upon which he has built an iron foundry and other buildings; on the west by Bangor Road, on the east by Albert Road, and on the south by Burlington Street, and including the wall built upon the said area of ground, and forming the south boundary thereof, for which wall my said disponee has paid the sum of £33, 15s. as the value of the same, which has been fixed and ascertained by John Masterton, surveyor in Edinburgh, and Thomas Anderson, builder, Leith, two valuators mutually chosen by me and my said disponee, conform to their report, dated 26th May 1864; with free ish and entry to the said area of ground by all the roads or streets made or to be made by me for the use and accommodation of my feuars at Bowling-green.”

The feu-charter also contained the following condition:—“Further, my said disponee and his foresaids shall be bound to pay a proportion of the expense of maintaining the streets and roadways leading to and from the said area of ground and the said property of Bowling-green, until the same shall be taken over as public streets and roads and assessed for as such, and also a proportion of the expense of the drains to be formed upon the said property of Bowling-green and Redhall, and of maintaining the same, such proportions to be according to frontage belonging to my said disponee and his foresaids.”

In December 1867 Mr Field feued to John Philip “All and Whole those parts and portions of my lands of Bowling-green, consisting ( First) of that narrow stripe of ground stretching from Great Junction Street on the north to Burlington Street on the south, and laid down on the feuing-plan of my lands of Bowling-green and Redhall as for the northmost part of a street or roadway to be called Albert Road, but which roadway is not now to be made, together with the wall two feet in thickness erected on the east and south boundaries of the said stripe of ground, and the ground upon which the said wall is built, the said stripe of ground and the ground upon which said wall is built being 42 feet in breadth or thereby; and ( Second) That area of ground lying between the said stripe of ground above described and Bangor Road, as the said stripe and area of ground are delineated on the plan annexed, and signed as relative hereto, and which stripe and area of ground may be otherwise described as All and Whole that block or area of feuing ground, part of my said lands of Bowling-green, including the part thereof formerly intended to be made into the northmost end of a street or roadway to be called Albert Road.”

In January 1868 Mr Philip granted a disposition to Mr Bernard in the following terms:—

“I, John Philip, wood merchant, Leith, heritable proprietor of the subjects hereinafter disponed, considering that Thomas Bernard, brewer in Edinburgh, is entitled to a certain right of servitude over a road intended to have been made through the lands of Bowling-green and Redhall, conform to feu-charter granted by Thomas Field of Bowling-green and Redhall in his favour, dated the 29th June, and recorded in the Register of Sasines the 2d day of July 1864; that the said Thomas Bernard having agreed to renounce and give up said right of servitude in favour of the said Thomas Field, in order to him disponing the ground to be converted into said road to me free and disencumbered thereof, on condition of my granting these presents, and the said Thomas Field having disponed and made over the property

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of the said intended road to me, conform to feu-charter in my favour, dated the 19th day of December 1867: Therefore, in implement of my part of said agreement with the said Thomas Bernard, and without any price or other consideration than that above-mentioned being paid for the subjects, I do hereby sell and dispone to the said Thomas Bernard, his heirs and successors whomsoever, heritably and irredeemably, all and whole that piece of ground, part of the area intended to form said road to be called Albert Road, immediately opposite to and adjoining the area of ground containing 27 poles imperial measure, disponed to the said Thomas Bernard by the foresaid feu-charter in his favour.”

The pursuer, Mr Crawford, acquired right to both these subjects, and raised this action.

The Lord Ordinary ( Gifford) pronounced the following interlocutor:—

“ Edinburgh, 2 d June 1874.—The Lord Ordinary having heard parties' procurators and having considered the closed record, title-deeds produced and founded on, and whole process—Finds that, according to the true import and effect of the writs and titles granted by him, the defender is not entitled to occupy or enclose the solum of Burlington Street opposite to the warehouse belonging to the pursuer, so as to prevent the pursuer from having the use of the solum of Burlington Street opposite said warehouse: Therefore finds, declares, decerns, and ordains in terms of the conclusions of the action: Finds the pursuer entitled to expenses, and remits the account thereof, when lodged, to the Auditor of Court to tax the same and to report.

Note.—In the view which the Lord Ordinary takes of this case, the question is, What is the true import, nature, and effect of the feu-contracts or agreements of feu which the defender Mr Field entered into with his vassals? What did the parties to the feu-charters undertake to each other on the one side and on the other? What obligations are expressed, and what are necessarily implied?

There are no questions in the present case as between singular successors, and there are none as to how far conditions of feu have been created real burdens on the property, for the question really is between the contracting parties themselves. The defender, Mr Field, is himself the granter of both the feu-charters in question, and the pursuer, although not the original feuar under these feu-charters, comes exactly in place of the original feuars, and is bound in precisely the same manner as they would have been.

The feu-charters involved in the present question are two:—(1) The feu-charter by the defender to Thomas Bernard, 29th June 1864, of the ground on which the pursuer's warehouse is now erected; and (2) The feu-charter by the defender to John Philip, 19th December 1867. The pursuer is now in right of the whole subject contained in the first feu-charter and of a portion of the ground embraced in the second. The question mainly turns upon the terms of the first feu-contract. By this deed the present defender feued to Thomas Bernard, the pursuer's author, an area of ground therein mentioned, which is described as bounded as follows:—‘On the north by the area of ground feued by me to Andrew Morton, ironfounder;’ ‘on the west by Bangor Road, on the east by Albert Road, and on the south by Burlington Street, and including the wall built upon the said area of ground, and forming the south boundary thereof, ….. With free ish and entry to the said area of ground by all the roads or streets made or to be made by me for the use and accommodation of my feuars at Bowling-green.’

At the date of this feu-charter the defender Mr Field was, and still is, proprietor and superior not only of the area feued, but of the whole ground around it on all sides. In particular, he was and is proprietor of the solum of the three streets by which the area is described as bounded on the east, south, and west sides. The north side is bounded by another feu granted by the defender. It is said that at the date of the charter only one of these streets, Bangor Road, was partially formed; but however this may be, there is really no doubt about any of the streets, for upon the back of the feu-charter, and signed by the defender himself, there is a very distinct plan of the feu drawn to scale, showing very completely Bangor Road, Albert Road, and Burlington Street, as bounding the feu on three sides thereof. It is said that this plan is not mentioned in the feu-charter as signed relative thereto. But if there was any force in this very technical objection, it is obviated by another plan annexed to Philip's feu-contract, in right of which the pursuer also is, and which is specially signed by the defender as relative to the deed. Both plans show all the streets in question, particularly Burlington Street, which is the pursuer's south boundary. It is perfectly plain, therefore, that the pursuer and his author took their feu and have built thereon on the faith that it was to be bounded on three sides by the three streets specially named and described, and specially and precisely laid down on the signed plans annexed to the feu-charters.

Now the question is, Can a superior, after granting such feu-charters and geting expensive subjects erected on the faith thereof,—it might be villas or shop property,—block up without his vassal's consent all or any of the streets bounding the feu on the faith of which the vassals had built, and free ish and entry by which he has expressly granted? It is vain to say the superior is leaving Bangor Road untouched, and only blocking up one side of the pursuer's feu, for if the superior has a right to block up one of the streets, why not any of the streets, or why not all of them? and nothing can turn upon the fact, if it be the fact, that Bangor Road was partially formed at the date of the feu whereas Burlington Street was not. In a question with the superior himself nothing can turn on such accidental circumstance. The pursuer says that Bangor Road was only formed the length of Morton's, that is of a previous feu. The Lord Ordinary has allowed no proof of these facts, as he does not think them material to the issue.

The Lord Ordinary is very clearly of opinion that under feu-contract s like the present the superior was bound, in common sense as well as in common fairness and honesty, at least to leave open the street ways by which his vassal's property was surrounded. It is true there is no obligation on the superior to make or form the streets, that is to causeway or pave them, and he is not asked to do so, but at all events he must leave them open, and not cover them with buildings. The vassal would never have taken the feu had it not been surrounded by these streets. Its value was, or at all events might be, greatly enhanced by its triple frontage, and it is out of the question for the pursuer to offer to prove that the true front only faces Bangor Road. The vassal is entitled to shift his

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front at pleasure and face any way he pleases, or, if he prefers, to face three ways at once. The pursuer was clearly entitled to make a gateway or access by Burlington Street. He is entitled to do so yet at any time—it is part of his contract. But this would be impossible if the defender is to be allowed to cover the solum of Burlington Street even with temporary buildings, and for an indefinite time. The same may be said of the pursuer's lights. He is entitled to have a street way, and therefore uninterrupted lights on three sides of his feu. The Lord Ordinary thinks that the defender's offer to prove an “understanding” that Burlington Street should not be made till a certain watercourse was drained is incompetent. Admittedly there is no obligation on any one to drain the watercourse, and nobody can tell when it will be drained.

On the short ground, therefore, of clearly implied contract, the Lord Ordinary holds the defender bound to leave the solum of Burlington Street unoccupied opposite the pursuer's property. He thinks the pursuer may himself pave or causeway Burlington Street at that point whenever he pleases. As to Albert Road, the principle has been recognised, for it has been shut up only by consent of everybody interested, and to these arrangements the defender was a party.

The case chiefly relied on by the defender was that of the Trustees of Free St Mark's v. Taylor & Others, 26th January 1869, 7 Macph. 415, but the cases are entirely different. Free St Mark's case was a case arising between singular successors deriving through a common author. It was a question there, not only whether real servitudes had been constituted, but whether mutual obligations towards each other had been effectually laid upon adjoining or conterminous feuars or vassals, and it was also a question how far the mention of an intended or projected street was really intended to bind any of the parties absolutely to make that street. None of these points arise in the present case, which is one directly between superior and vassal, and simply concerns the interpretation of an express or implied obligation. In the case of Dennistoun v. Thomson, 22d November 1872, 11 Macph. 121, which arose subsequent to that of Free St Mark's, there are important observations explaining the decision in Free St Mark's case, and one of the streets involved in Dennistoun v. Thomson was very similarly circumtanced to Burlington Street, and an implied obligation to leave the solum open was found effectual and was enforced. The present, however, is in all respects an a fortiori case.”

The defender reclaimed, and pleaded—“(1) The action should be dismissed, in respect the pursuer has no title to sue. (2) All parties interested have not been called. (3) The defender should be assoilzied, in respect that the buildings complained of are entirely within the defender's own property, lands of Redhall, and do not encroach upon any part of the feued lands of Bowling-green. (4) The intended Street called Burlington Street not having been formed, and there being no obligation upon the defender to form said street, at all events in hoc statu, the pursuer cannot interfere with the defender in the use of his lands by temporary erections of the kind complained of. (4) The pursuer is barred from objecting to the said erections by the knowledge and acquiescence of himself and his author. (6) Generally, the action is frivolous, uncalled for, and unnecessary, and the defender should be assoilzied, with expenses.”

Argued for him—The superior's right of property was absolute up to the boundary of the feu granted. The clause of ish and entry was in general terms, and the superior was not bound to form the streets in question within any particular time. The vassal was only to get access by the roads when they were made, and until that was done the superior was entitled to use the ground for temporary purposes. The erections complained of were temporary, and did not constitute any invasion of the pursuer's right.

Authorities— Trs. of Free St Mark's v. Taylor, Jan. 26, 1869, 7 Macph. 415; Dennistoun v. Thomson. Nov. 22, 1872, 11 Macph. 121; Barr v. Robertson, July 19, 1854, 16 D. 1049; Carson v. Millar, March 13, 1863, 1 Macph. 604.

The pursuer pleaded—“1. The pursuer is entitled to decree as concluded for, in respect—(1) The buildings and erections complained of are an invasion of the pursuer's rights under the said charter, and are illegal and unwarrantable; (2) The defender is not entitled to rest his buildings and erections on the pursuer's wall; (3) The defender is not entitled to obstruct the pursuer's lights by means of buildings or erections on Burlington Street.

Argued for him—There was an express grant by the superior to his vassals of free ish and entry to the ground in question. There was a plan signed by the superior appended to the feu-charter, and referred to therein as relative thereto. The description of the boundaries, all of which were on the superior's own property, suggested that the vassal was to have immediate ish and entry; were it not so, the superior would have had the power of excluding the vassal altogether until he chose to form the streets.

At advising—