Scottish Court of Session Decisions

This was an action relating to the right to the solum and the use of a road within the royal burgh of Rutherglen. In 1876 the Corporation acquired from James Graham, trustee of the deceased Mr and Mrs George Thomson, certain lands within the burgh, conform to disposition dated 15th, and recorded in the Register of

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Sasines for the burgh of Rutherglen the 17th, days of August 1876. The disposition conveyed to the burgh “All and Whole the lands called Low Corsehill acquired by Major-General John Spens of Stonelaw from sundry proprietors.. .. Item—All and Whole the lands called North and South Sheriff Ridges. .. and extending to 8 acres 2 roods and 12 falls or thereby, bounded by the road to Castlemilk [afterwards known as Mill Street] and lands of Adam Johnston respectively on the west, the lands of Clincarthill on the north, and the lands of Low Corsehill on the east, and the lands of Walter Whyte on the south. .. which several subjects and others before disponed lie contiguous within the burgh of Rutherglen and county of Lanark. .. and whole parts and pertinents thereof, and free ish and entry to and from the said lands.”

George Bainbridge, tobacconist in Rutherglen, the defender of this action, acquired by disposition, dated and recorded in November 1877, from David Warnock, flesher in Rutherglen, and sometime Provost of the burgh, a plot of ground in the burgh adjoining that conveyed to the burgh as above-mentioned, conform to disposition by Warnock in his favour, and which was described as “bounded on the north-by-east by an old private road leading from Mill Street, along which it extends for 295 feet 6 inches or thereby.”

The old private road here mentioned was the road in dispute in this action. The Corporation maintained that the defender's land did not include it or any part of it, and that it was wholly in their property, and had been so held by them and their authors for over 40 years, and formed an access to their conjoined lands of Sheriff Ridges and Low Corsehill, and the only access to their separate lands of Sheriff Ridges. The defender, on the other hand, denied the right alleged by the Corporation to the property or exclusive use of the road, and he maintained that so far as they used it, it was only by sufferance; and that even assuming that they had any right of property in it, he had a servitude over it which had been exercised by him and his predecessors for upwards of 40 years prior to the raising of this question between the parties, for all purposes necessary to the full enjoyment of his property. The question arose in consequence of the defender opening up a new access to his land from the road in question in 1880, and closing the access from Mill Street which had been made in 1856 by his predecessor as after stated.

This action was brought by the Corporation in the Sheriff Court, craving the Court “ First, To find and declare that the pursuers are the sole owners or heritable proprietors, a centro usque ad cœlum, of the solum of the access to their lands of Sheriff Ridges, lying in the burgh of Rutherglen and county of Lanark, by the road leading into said lands from the highway to Castlemilk, now known by the name of Mill Street, which road forms the north or north-by-eastern boundary of the defender's lands, adjoining those belonging to the pursuers: Second, To interdict the defender from using or interfering in any way with said access or road: And Third, To ordain the defender to remove a gate erected by him at the western end of said access or road, and to restore the same to the condition in which it was before his interference therewith.”

The pursuers pleaded—“(1) The pursuers' Corporation being a royal burgh, has, in virtue of its charters, a title to all lands within the burgh not embraced in any title showing divestment by them. (2) The pursuers being the sole proprietors of the solum of the access or private road condescended on, are entitled to decree of declarator as concluded for. (6) In any event, the use, if any, had by the defender or his predecessors, being temporary, interrupted, and on the sufferance of the pursuers and their predecessors, he has acquired no rights, either of property or servitude, in the said road or access.”

The defender pleaded that the pursuers had no title to sue the action; that they had no right of property or servitude in the road, and that, assuming them to be proprietors, he had a servitude over it.

A proof was led. With regard to the use before 1856, it appeared that before Warnock acquired the ground in that year his predecessors had used part of the road in dispute, consisting of about 60 feet from the west end (marked A on the plan hereafter referred to) chiefly for driving up it their cows when letting them into the park of which the defenders' lands formed part, and which was called Johnstone's park. They did not use the road eastward of that 60 feet. Shortly after Warnock acquired the land in 1856 he shut up the entrance from the disused private road and made a new one from Mill Street, the main road from Rutherglen to Castlemilk, and thereafter used the new entrance. [Warnock being insane was not examined]. When the defender acquired the lands from Warnock in 1877, the entrance was by this gateway in Mill Street which had been made by Warnock in 1856. In 1880 defender closed this entrance to the lands, which he then occupied as a nursery garden, from Mill Street, and formed a new entrance from the private road in dispute about 68 feet up from Mill Street. He also erected a gate at the end of the private road nearest Mill Street, and put a lock on it.

The pursuers produced other titles in support of their claim to the solum of the road in dispute, but these need not be referred to or quoted, since the view of the Court was, as found in the interlocutor quoted infra, that the road was included in the disposition to them of 1876 above quoted.

The Sheriff-Substitute (Lees) pronounced this interlocutor:—The Sheriff-Substitute having considered the cause, finds that the titles produced by the pursuers do not explicitly instruct that the road in question, between the points A and B on the plan, falls within the ground conveyed to them by the said titles: Finds that the pursuers have failed to prove that they have had exclusive possession of the said road: Finds, in these circumstances, as matter of law—(1) That the evidence, documentary and oral, adduced by the pursuers is inept in law to qualify a right of property in the said road in their favour; (2) that the pursuers not being the proprietors of the said road, have no title in law to have the defender interdicted from making use of the same or making an entrance thereto; therefore sustains the first plea-in-law stated by the defender; assoilzies him from the conclusions of the action as laid; and decerns.

“ Note.—At the closing of the record the case was carefully debated by parties on the pleadings and the titles produced by them, and the conclusion

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at which I then arrived was—Firstly, that the defender had no title of property to the said road; and secondly, that the writs produced by the pursuers did not expressly instruct that the road belonged to them, or, at any rate, instruct it so distinctly as to justify me in holding that the defender must be restrained from using the road unless he established a right of servitude. I referred the parties at the debate to the case of Begbie's Trustees v. Thomson, December 13, 1871, 9 S.L.R. 156, and allowed the pursuers the opportunity of establishing, if they could, at the proof that was to take place, that they had had such possession of the road as sufficed to interpret their titles, as including within their scope the solum of the ground in question. Now, possession adequate to qualify such a right must be either exclusive possession, or possession such that the use or possession had by others was plainly to be ascribed to a right not inconsistent with the right of property asserted by the pursuers. On a consideration of the evidence I am of opinion that the pursuers have failed to establish possession of the necessary character, and, indeed, it may be questioned whether their proof instructs any very distinct possession at all. That being so, the pursuers' case fails, and they have no title to sue. But as a great deal of evidence has been led in regard to the character of the defender's right, I may shortly say that it seems to me the preponderance of evidence goes distinctly to set up the right of servitude over the road in question that the defender claims.”

On appeal the Sheriff-Principal (Clark) adhered.

The pursuers appealed to the Second Division of the Court of Session.

Argued for them—(1) The Burgh of Rutherglen was a royal burgh. The portion of land constituting the road in question was originally a part of their land, and as no title was produced showing that they had parted with their right of property in it, the title still remained in them— Jamieson v. Magistrates of Dundee, December 10, 1884, 12 R. 300. (2) The defender had not shown any right of servitude. Now, for the defender to prove his case it was necessary for him to show that for at least forty years prior to 1856 the proprietors of the piece of ground he held had exercised a right of servitude over it; for it was admitted that in 1856 Warnock gave up using that road as a means of entrance to this ground, and from that time until the defender tried to exercise a servitude over it, i.e., from 1856 to 1880, it had not been used by the proprietor of that ground. In Hill v. Ramsay, 30th March 1810, a servitude by possession, without written title, was claimed, and it was proved that there had been forty years' possession, but interruption for between twenty and thirty years by ploughing over the road was also proved, and the servitude was held to have been abandoned—5 Paton's App. 299; Campbell Douglas v. Hozier, October 19, 1878, 16 S.L.R. 14.

Argued for the defender—The pursuers could not show a good title to the solum of the road. The evidence showed that a servitude had existed over this road at least for some 68 feet up from Mill Street, as an access to the defender's land, for more that forty years. A servitude could not be extinguished by disuse for less than forty years— Mann v. Brodie, May 4, 1885, 12 R. (H.L.) 52.