Scottish Court of Session Decisions

This was an action at the instance of James Bennett, painter, against James Playfair, wright, both residing in Glasgow. The pursuer and defender were conterminous proprietors of steadings of ground, with self-contained dwelling-houses thereon, on the east side of Holland Place, Glasgow—No 8 belonging to the pursuer, and Nos. 9 and 10 belonging to the defender. These houses were built in 1827, and in a plan on which they were delineated, with a view to the sale of the subjects at the time, there were also shown two lanes, the one 14 feet wide, running east from the east side of Holland Place, and forming the south boundary of No. 10, and the other 8 feet wide, running at right angles northward from the other lane along the east boundary of the dwelling-houses. A disposition of the house No. 8, sold in 1829, contains the following clause—“Together with free ish and entry to the said subjects, on the east by the meuse lane leading eastward from Holland Place, and thereafter northward behind the lodgings on the east side of Holland Place.” The disponee was further taken bound to pay a proportional part of the expense of maintaining the meuse lane. Nos. 9 and 10, which belonged to the same proprietor as No. 8, were sold at the same time, and the dispositions contained similar clauses to the first. At the time of this action the pursuer was proprietor of No. 8, and the defender of Nos. 9 and 10, which he acquired in 1874.

For forty-years the two lanes running eastward and northward had remained open and unbuilt—a terra usque ad cœlum—and the pursuer stated that he and his authors had enjoyed the uninterrupted use and possession of them for access, and for taking in coals, and other purposes. The defender, after obtaining decree from the Dean of Guild of Glasgow “to line” his premises (which the pursuer explained was not opposed by him, owing to a misapprehension), proceeded to erect, partly' on Nos 9 and 10, and partly over and across a portion of the meuse lane, a joiner's workshop and pertinents. He put up a wooden building of three storeys high, so as to make the entry to the lane by a covered pend of 11 feet high, instead of by an open lane. This action was brought for reduction of the Dean of Guild decree, and for declarator that the defender had no right under his title or otherwise to put up the erection.

The defender pleaded that the pursuer had no right of property in the lanes in question, and that the erection, being at a height of 11 feet from the ground, could not interfere with the use of it by the pursuer, nor with his right of ish and entry.

The Lord Ordinary repelled the defences and gave decree of reduction and declarator, and ordained the defender to remove the erections. There was the following note to the interlocutor:—

Note.—The properties of the pursuer and defender are derived from a common author. They lie between Holland Place and a meuse lane, which in the several dispositions is given as the boundary on the east. In the titles it is declared that the pursuer and defender shall have free ish and entry to their respective premises by this meuse lane.

The defender has erected over this meuse lane an archway of the entire breadth of his property, and 11 feet high. The length of the arch is about 40 or 45 feet. The defender does not pretend that he has any right of property in the lane, nor does he dispute that the pursuer is entitled to ‘free ish and entry’ by means of it; but he maintains that the arch does not interfere with the pursuer's rights, and that the pursuer has therefore no right to complain.

“The Lord Ordinary thinks that the defender is wrong. The pursuer is entitled to access to his property by means of the meuse lane. To cover the lane by an arch is, in the opinion of the Lord Ordinary, to interfere materially with this right of access. As he reads the titles, it was intended that the access should be by an open lane; and the arch would make some legitimate uses of the lane impossible.”

The defender reclaimed, and argued—The pursuer has not set forth how his right is interfered with, and unless “free ish and entry is prevented” he cannot object.

Authorities— Mackenzie v. Carrick, Jan. 27,1869, 7 Macph. 419; Glasgow Jute Co. v. Carrick, Nov. 5, 1869, 8 Macph. 93.

At advising—