Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Ayr by the Provost, Magistrates, and Council of the Royal Burgh of Ayr, as representing the whole body and community of that burgh, with consent and concurrence of the Commissioners of the burgh, against James Dobbie, tanner, currier, and leather merchant, Ayr.

The pursuers prayed the Court to find and declare that they, the Town Council of Ayr, as representing the whole body and community of the burgh, were vested in and were the sole proprietors of the solum of that part of Mill Street, Ayr, adjoining the defender's tannery to the north, unaffected by any right of servitude of aqueduct or pipe-track in favour of the defender, and to ordain the defender to remove the pipe and apparatus laid across Mill Street, and used by him for conveying water from the river Ayr to his tanwork.

The following statement of the facts is in substance taken from the note appended to the interlocutor of the Sheriff-Substitute ( Paterson)—“The defender is, and has been since 1879, proprietor of a tanwork in Mill Street, of Ayr, described in the titles as ‘All and whole that piece of ground now converted into a tanwork, lying in the Mill Vennel of the burgh of Ayr, consisting of 60 falls, bounded on the north by the High Road leading to the Mills of Ayr, on the east by the ground belonging to Margaret Houston, daughter of the deceased john Houston, late convener of the trades of Ayr, and spouse to Walter Eiston, mason in Ayr, on the south by the ground belonging to Elizabeth Houston or Limond, and on the west by the ground also belonging to her, designed for a road 10 feet in breadth, with the whole houses now built thereon, and tanning pits now made therein.’ The defender's property is held feu of a subject-superior.

In 1869 John Macneille, then Provost of Ayr, who was proprietor of and carried on a tannery in what is now the property of the defender, obtained from James Inglis M'Derment, who was then proprietor of the property now belonging to the pursuers on the opposite side of Mill Street, a right of servitude of laying a pipe through the pursuers’ property to the river Ayr, for the purpose of conveying water from the river to the defender's tanwork.

Immediately following on this agreement an iron pipe 3 inches in diameter was laid from the defender's tanwork at a depth of 3 or 4 feet under and across Mill Street, and through the pursuers' property for about 100 yards to the river Ayr, and has remained there till the present time.

Pumping machinery was erected, and has been since added to, and ever since 1869 the tannery and the defender's property has been supplied with water from the river Ayr, conducted through this pipe.

It was a stipulation of the agreement between Mr Macneille and Mr M'Derment that the right of servitude granted was to be perpetual, and should be inserted in all future deeds of transmission of Mr M'Derment's property, but that Mr M'Derment should not be held as guaranteeing Mr Macneille's ‘right to take water from said river, or to lay said pipe in Factory Close, or across said street to said tanwork.’

In 1895 the pursuers, as Commissioners of Police and Local Authority of the burgh of Ayr, acquired Mr M'Derment's property for the erection of electricity lighting works.

The subjects so acquired by the pursuers were held burgage.

They are described as lying in the Mill Vennel and burgh of Ayr, and bounded by that part of the foresaid subjects disponed by the said William Wood to the said Hugh Donaldson on the east, the high road leading from the Mills of Ayr on the south, the river of Ayr on the north, and the subjects disponed by Mrs William Robertson Williamson Ewart ‘on the west,’ but ‘with and under the burden of a servitude granted to the late John Macneille, leather merchant in Ayr, of laying a pipe for conveying water from the river Ayr to his works through the garden and close of the subjects above conveyed.’ … … . .

The title upon which the pursuers found is the charter of erection of the burgh of Ayr granted between 1165 and 1214 by William King of Scots, commonly called William the Lion, and renewed and confirmed by later sovereigns.”

This charter contained the following clauses— “Also I have granted to that same burgh of mine, and to my burgesses who in that burgh shall remain and dwell, the five penny lands which belong to the town of Ayr, by the boundaries after-written…. Also I have granted to my burgesses there dwelling, that with each complete toft of theirs they shall have six acres of land, which they shall reclaim out of the wood within the foresaid five penny lands, to make their own profit thereof; paying yearly to me for each toft and six acres adjoining it twelve pennies.”

“It has been established to the Sheriff-Substitute's

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satisfaction that the solum of this part of Mill Street and the properties of the pursuers and defender adjoining it on opposite sides are within the extensive boundaries of the burgh in King William's charter, and that they have ever since been and are within the territory of the burgh.

The ownership of the ground—at least of the defender's portion of it—has changed since the date of King William's charter,

The defender's property appears to be included in the subjects named ‘Hamfries Fauld’ and ‘Snaipes Fauld,’ which came into the possession of the friars preachers of the burgh of Ayr, and which at the Reformation fell to the Crown and were in 1567 gifted by the Crown to the provost, bailies, and community of Ayr for an honest provision for the ministers of the Word of God and the support of an hospital for the poor, mutilated, and distressed persons, orphans, and infants forsaken by their parents.

The pursuers do not found their claim to the solum of the street upon this title.

In the procuratory by the Magistrates of Ayr for resigning the church lands and rents belonging to them in the king's hands for new infeftment in their favour, of date 1st February 1614, these lands are described as ‘All and haill the samin tenement of land occupiit by the said umquhile William Hamfie, bak and foir, with yard and pertinentis, lyand within the said burght, upoun the eist syd of the Kingis Streit, in the Wodgait foirsaid, betuix the said uthir tenement callit Johne Symis barne on the northt and ane part and the tenement of umquhile Matthew Hammiltoun, now Robert Cunninghame, mariner, on the southt and uthir part,’ and ‘All and haill the fauld and croft of land callit Snaipes Fauld, with housis, yardis, and pertinentis thairof now occupiit be Johnne Lockhart of Barr, and his subtennentis, lyand within the said burght at the townheid thereof in the gait passand to the milnis of the said burght, upoun the east syd of the hie streit of the samin.’

This description ‘lyand in the gait passand to the milnis of the said burght,’ seems to imply that at that date Snaipes Fauld lay in a ‘gait,’ or way leading to the Mills of Ayr, but there is nothing to indicate what was the nature of the way or on what property it was.

The burgh feued these properties, at what date does not appear.

In the earliest title of the feuar from the burgh, which has been produced, a disposition in 1776 by Robert Paterson Wallace, successor of the original feuar, to Alexander Wallace, they are described as ‘The crofts of land or faulds, commonly called Hamphies Fauld and Snipes Fauld, with the houses, gardens, and pertinents therof as well property as tenantry, situated within the said burgh of Ayr, near the south port, commonly called the Kyle port upon the east side of the High Street’; and in the sasine in favour of Alexander Wallace in 1787 the description is, ‘All and whole the crofts of land or faulds, commonly called Hamphies Fauld and Snipes Fauld, with the houses, yeard, and pertitinents thereof as well property as tenantry, lying contigue and together, within the burgh of Ayr, near the south port commonly called the Kyle port, upon the east side of the High Street, betwixt the lands of Matthew Hamilton, deceast, thereafter of John Neill, and the lands sometime pertaining to James Cochrane, deceast, thereafter to umquhile Robert Wallace, thereafter of Robert Hunter on the north and one part, the lands sometime pertaining to John Watt and Hugh Wallace, now to on the south and other parts.’

In this description, which is still the description in the titles of the immediate feuar from the burgh, there is no mention of the high road as the boundary, the boundary being other lands, which rather infers that at the date of the original feu from the burgh the road in question did not exist, at least as a public or high road.

There is no exclusion in the feuar's title of any way which may have then existed, and there is room for the contention that the solum of this road was included in the title of the original feuar, and is the property of his successor, if not the property of the defender, the sub-feuar. In the feu-contract between Robert Paterson Wallace and John Houston, dated in 1770 [being the title of the first sub-feu], the subjects, which include the defender's property, are described as bounded by ‘the high road from said Kyle Port to Castle Hill on the west, the road from the Townhead to the Poorhouse on the south, the road from the Poorhouse to the Mill Vennell of Ayr on the east, and the yeard of William Rowan, flesher, next to the Mill Vennell and the yeard of Robert Hunter, now of Thomas Calbreath, next to the Townhead side on the north parts, as the same is at present fully inclosed with a stone dyke, hedge, and houses.’

The first mention in the titles produced of the High Road as the south boundary of the property, is in a feu-contract dated in 1793 between Elizabeth Houston, a sub-feuar of the original feuar, and William Tennant, the defender's predecessor.

It may be inferred from this that the High Road had been formed, or the ‘gait’ converted into a high road between the dates of the original feu by the burgh and this feu-contract, but there is nothing to indicate out of whose property it was formed, or how it came to be a high road.”

Provost Macneille paid £40 to Mr M'Derment for the right to take a pipe through his property, and since the pipe was laid a considerable sum of money had been spent upon machinery and otherwise in connection with the tannery. Evidence was led by the defender that the pipe was laid across the street quite openly, and that when it was being laid across the street some of the members of the Town Council in office at that time was standing by looking on. Mr Macneille was then Provost of Ayr. No formal consent to the pipe being laid across the street was given by the corporation as such, but on the other hand no objection was offered by them to the pipe

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being laid, and no steps were taken with a view to having it removed until after the pursuers acquired M'Derment's property.

The pursuers pleaded, inter alia— “(1) The solum, of Mill Street being the property of the pursuers, and the defender having no right of servitude therein, the pursuers are entitled to decree as concluded for, with expenses. (2) The said pipe having been laid through the pursuers' property without their consent, the defender should be ordained to remove it.”

The defender pleaded, inter alia—“(3) The pursuers have no title to sue in respect the solum of the street in question is not vested in them. (4) The pipe in question having been laid under the street with the sanction and approval of the pursuers' predecessors in office and their officials, and they having homologated and acquiesced in the expenditure of large sums of money by the defender and his predecessors and authors in connection therewith, the pursuers are barred from insisting in the present action, and the defender should be assoilzied with expenses. (5) The existence of said pipe having been known to the pursuers and their predecessors in office and their officials for twenty-eight years without objection, and they having permitted such expenditure, the rule of rei interventus applies, and the defender is entitled to absolvitor. (6) The pursuers having acquired the property on the other side of Mill Street, subject to the express servitude of aqueduct in the defender's favour, and a right of access having thus accresced to him, they are barred from insisting in the present action.”

On 17th February 1898 the Sheriff-Substitute ( Paterson) pronounced the following interlocutor:—“The Sheriff-Substitute having heard parties' procurators, and considered the proof and process, Finds in fact that the pursuers have failed to prove that they are proprietors of the solum of that part of Mill Street in the burgh of Ayr, near the Smith Street end thereof, lying immediately to the north of that piece of ground occupied by the defender as a tan-work there: Finds in law that the pursuers having failed to prove the ground upon which declarator of their title to the solum and removal of the defender's pipe is craved, the defender is entitled to absolvitor: Therefore assoilzies the defender from the conclusions of the action, finds him entitled to expenses,” &c.

Note.— [ After stating the facts as narrated supra, and the nature of the pursuers' demand]—“The effect of such a decree would be to extinguish the defender's right of servitude, or at least any beneficial enjoyment of it, and practically to relieve the pursuers' property of the burden of the servitude under which they acquired it.

The Sheriff-Substitute is not disposed to give effect to a contention the result of which would be so inequitable, unless forced to do so by legal title on the part of the pursuers.

[ The Sheriff—Substitute then stated the facts with reference to the earlier titles as above set forth.]

The origin and formation of the High Road leading to the Mills of Ayr and the property out of which it was formed being left uncertain by the proof, the Sheriff-Substitute is not satisfied that the mere fact of its being within the boundaries of the original charter of King William is sufficient to establish the pursuer's title to the solum, or that its being a public road or street within the territory of the burgh necessarily infers a title to the solum on the part of the Town Council.

In the case of Miller & Dalrymple v. Swinton and the Magistrates and Town Council of North Berwick, in November 1740 ( Mor. Dict. 13, 527), it was found that the public streets of a burgh belong to the Crown, and that the magistrates and council have no power to appropriate any part thereof.

This decision was pronounced at a period when the distinction between the rights of highway and rights to the solum of the road was probably not adverted to.

If the proof is not sufficient to establish that the pursuers are the owners of the solum of this road, it is not necessary for the defender to establish a right to the solum or the use of it for his pipe-track.

Were it necessary, it is thought not to be clear on the authorities that the right to the solum is excluded by the mere fact of the defender's property and the property of the opposite proprietor (from whom he obtained the right of servitude) being described as bounded by the High Road.

There may not be any authority to the effect that where a property is described as bounded by a public road, the road to the medium filum (as in the case of a river boundary) is included, but the Sheriff-Substitute is not aware of any express authority to the contrary.

In the cases of the Magistrates of St Monance, 7 D. 582, and Ewings, 20 D. 351, the property in dispute was not the solum of the road but land on the other side of the road.

The case of Galbreath v. Armour, 4 Bell's App. 374, decided that the subjacent soil of a highway belongs to the coterminous proprietor or proprietors unless specially disponed, and may be held to imply that the same principle has application to the case where a road is described as the boundary provided there is no other title to the solum.

In Wisliart, 1 Macq. 389, the Lord Chancellor (Cranworth) laid it down that the law was undoubted that ‘if a road separates two properties, the ownership of the road belongs half-way to one and half-way to the other. It may be rebutted by circumstances, but if not rebutted that is the legal presumption.’

There does not appear to be room for a distinction in this respect between high ways in burghs and highways in counties.

This action is at the instance of the Town Council with consent of the Commissioners, but there is no definite statement, and no proof that the defender's pipe-track interferes with the Commissioners' charge and control of the street, or with their use

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of the surface and subsoil for the purposes of the street.”

The pursuer appealed to the Court of Session, and argued—The solum of the road in question was within the area granted to the burgh by royal grant. It was not within the limits of the defender's property. His title was a bounding title. His property was described as “bounded on the north by the High Road leading to the Mills of Ayr.” The thing by which a property was said to be bounded was as a general rule excluded from the property which it bounded. The sole exception was where a river was the boundary. A road was not the same in this respect as a river. The reason why a different rule held good in the case of a river was that the ground covered by the river was different at different times, and short of the medium filum of the river bed there was no constant line to form the boundary. A property therefore which was bounded by a road did not as a general rule include any part of the road— Ewing v. York, December 19, 1857, 20 D. 351; Argyllshire Commissioners of Supply v. Campbell, July 10, 1885, 12 R. 1255; Loutitt's Trustees v. Highland Railway Company, May 18, 1892, 19 R. 791. The dicta to the contrary in Wishart v. Wyllie, April 14, 1853, 1 Macq. 389, per Lord Cran-worth, L.C., were purely obiter. In Currie v. Campbell's Trustees, December 18, 1888, 16 R. 237, Lord Rutherfurd Clark was probably referring to the case of a rural road made over land not acquired in property where there was merely a right of highway over a solum, the property in which remained in the neighbouring proprietors. His remarks therefore had no bearing on the case where the road which formed the boundary existed before the feu was given off. There was a strong presumption that the road leading to the mills of the burgh had existed from a very early period, and it appeared from the documents produced that the road to the mills which formed the boundary of the defender's property was in existence in the year 1614. There were no circumstances in this case to take it out of the general rule. No part of the solum of the road was therefore included in the defender's feu. Nor did it appear that anything more had ever been given off by the burgh than what the defender had now right to. The presumption was in favour of this being the case. But further, the description given in the procuratory of 1614 and the description in the feu-contract of 1770 were in favour of this view. The property in the solum of the road therefore remained with the burgh, and the Magistrates were entitled to decree as craved. The pursuers also maintained that they were not barred by acquiescence, or by having accepted a title to M'Derment's ground under burden of the servitude. Under this head of their argument they referred to Lord Melville v. Douglas's Trustees, December 12, 1828, 7 S. 186; Campbell v. Duke of Argyle, May 19, 1836, 14 S. 798; City of Edinburgh v. Paton & Ritchie, March 3, 1858, 20 D. 731; Cowan v. Lord Kinnaird, December 15, 1865, 4 Macph. 236; Rankine on Land Ownership (3rd ed.) 347.

Argued for the defender and respondent—(1) The pursuers had no title to sue. They had not made good their right to the property of the solum of the road in question. This was so, even assuming ( a) that the land in question was within the burgh grant; ( b) that the lands granted by the original charter were granted to the burgh; (c) that the mill road was in existence before the defender's feu was granted by the burgh; and ( d) that in the grant by the burgh the feu was described as bounded by the mill road. Where two properties are divided by a road, and both are described as bounded by that road, the presumption is that half of the solum of the road ad medium filum belongs to each proprietor— Currie v. Campbell's Trustees, December 18, 1888, 16 R. 237, per Lord Rutherfurd Clark at p. 241, where “wood” should be “road”—(see 26 S.L.R. at p. 172); Wishart v. Wyllie, per Lord Cranworth, L.C., cit.; Galbreath v. Armour, July 11, 1845, 4 Bell's App. 374, per Lord Campbell, L.C., at p. 381. In the opinion last cited it was laid down that the laws of Scotland and England were the same in this respect. In England the question had been decided in a manner favourable to the defender's present contention— Lord v. The Commissioners for the City of Sydney, 1859, 12 Moo. P.C. 473, at p. 497; Micklethwaite v. Newlay Bridge Company, 1886, 33 Chan. Div. 133, per Cotton, L.J., at p. 145; In re White's Charities [1898], 1 Ch. 659, per Romer, J., at pp. 664 and 666, which last case related to a street in a town. In Ewing v. York, cit., all that was decided was that the proprietor whose property was bounded by a road had no right to land lying on the further side of the road. In Argyllshire Commissioners of Supply v. Campbell, cit., the matter now in question was not discussed. Loutitt's Trustees v. Highland Railway Company was an action of damages, and the only reference to this question was a cursory observation of the Lord President's at p. 796. Moreover, in none of these cases were there two properties on opposite sides of the road both given off with the road as their boundary, which was the case here. There was no case in the books in which a superior had come claiming the property in a road where the lands on both sides of the road had been admittedly parted with by him for centuries. The presumption was that when the lands on both sides of the road had been parted with the road was given off also, because as a rule the granter had no object in keeping it. But further, none of the assumptions made supra for the sake of argument were well founded. The defender's feu, even if within the original grant, had been taken out of it. It was held feu in the time of Mary. Moreover, the lands originally granted by the charter of William the Lion were granted to the burgesses, not to the burgh. The pursuers had proved nothing with regard to the origin of the mill road or the date when it was made. The terms of the description in the

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mid-superiority title seemed rather to indicate that the feu was prior to the road. The presumption was that a road was formed out of the lands of neighbouring proprietors, and that the solum of it belonged to them. The mid-superiority titles were not in the same terms as the defender's, and even if the defender's title did not cover any part of the solum of the road, it did not follow that the mid-superiors’ title did not do so. Such of the midsuperiority titles as had been produced seemed rather unfavourable to the pursuer's contention, but the original grant from the Magistrates to their immediate vassal had not been produced. In any view, this question could not be decided in the pursuer's favour without calling their own immediate vassal. The pursuers were bound to prove that they were the proprietors of the solum of the road, and in the absence of proof as to the date and origin of the road, and the date and terms of the original feu-grant by the burgh, they could not be held to have done so. Moreover, it had been decided that the solum of the streets of a burgh did not belong to the magistrates— Miller and Dalrymple v. Swinton and Magistrates of North Berwick, 1740, M. 13, 527; nor to the Commissioners— Glasgow Coal Exchange Company, Limited v. Glasgow City and District Railway Company, July 20, 1883, 10 R. 1283, per L.P. Inglis, at p. 1291. Duke of Buccleuch v. Magistrates of Edinburgh, February 16, 1865, 3 Macph. 528, was decided on the assumption that the solum of the street belonged to the magistrates. The defender also maintained (2) that the pursuers were barred by acquiescence, and under this head of his argument he referred to Bell's Prin. 946, 947, and to Duke of Buccleuch v. Magistrates of Edinburgh, cit. per L.J.-C. Inglis, at p. 531; and (3) that the pursuers were barred from derogating from the defender's right of servitude by the terms of the title to M'Derment's ground which they had accepted.

At advising—