Scottish Court of Session Decisions

This was an action raised by John Jamieson M'Ewan, clerk and collector to the heritors of the parish of Strathblane, against the Corporation of Glasgow, concluding for declarator that the defenders were heritors of the said parish, and were liable to be assessed for the maintenance and upkeep of the church and manse thereof. There was also a conclusion for payment of certain sums amounting in all to £102, 2s. 6d., being the defenders' share of certain assessments imposed at different dates by the heritors for the upkeep of the manse.

The pursuer averred that the defenders or their predecessors, the Glasgow Corporation Waterworks Commissioners, had acquired certain lands and heritages situated in Strathblane for the purpose of erecting buildings in connection with their undertaking of supplying Glasgow with water, and had also acquired certain heritable rights whereby they became entitled to construct pipes, culverts, aqueducts, and other works of a corporeal nature beneath the surface of the ground for the transmission of water through the said parish.

After setting forth the several conveyances by which the said lands and heritable rights were conveyed to the defenders or their predecessors the pursuer proceeded—“(Cond. 5) The said defenders or their predecessors, the said Waterworks Commissioners, have exercised the rights set forth in the above conveyances, and have constructed, and the defenders are now proprietors of, aqueducts, pipes, conduits, drains, cuts, sluices, culverts, tunnels, and other works of a corporeal nature in, on, or through land specified in the said conveyances and situated in the said parish. The said aqueducts, pipes, conduits, and other works above specified, are substantially built of stone, iron, cement, and other materials of a like nature. The said subjects are heritable, and the defenders have right to maintain, and intend to maintain, the same in their present positions in perpetuity. They are corporeal subjects of a heritable nature possessed under heritable title, and the pursuer avers that in respect thereof the defenders are proprietors of lands and heritages in and are heritors of the said parish, and liable to be assessed for the maintenance and upkeep of the parish church and manse. (Cond. 6) The said subjects belonging to the defenders are lands and heritages within the meaning and for the purposes of the Lands Valuation Act 1854 (17 and 18 Vict. cap. 91), and ever since the defenders or their predecessors, the said Waterworks Commissioners, acquired the said subjects they have been entered in the said valuation roll for the said parish as the owners and proprietors thereof. No objection has ever been made by the defenders or their predecessors, the said Waterworks Commissioners, to the inclusion of the said subjects in the said valuation roll, and no appeal has ever been taken by them against the said valuation appearing therein.”

The pursuer concluded by narrating the imposition of the various assessments, and by averring that they were in each case calculated on the amount of the real rent of the lands and heritages in the parish, including the lands and heritages belonging to the defenders, as instructed by the valuation roll.

The defenders admitted liability in respect of the lands and buildings absolutely owned by them. “But they deny that they are heritors or are liable as heritors in respect of the lands through which they have acquired mere servitudes or way-leaves.”

They further explained “that the defenders are not heritors in the parish of Strathblane in respect of their pipes and conduits which run across a portion of the said parish, and are not made liable for heritors' assessment by the entries in the valuation roll before referred to, and that in any view, even if the defenders are heritors, the mode of assessing the defenders' property in making up the said roll is inapplicable to their position as heritors. The proper mode of assessment for the lands in the said parish, being a landward parish, is according to the valued rent, or at all events according to the real rent of the land as such, and apart from the returns of the defenders' undertaking. Explained further that it has never been the practice, either in the said parish or elsewhere in Scotland, to assess waterworks for heritors' assessment in respect of pipes and conduits belonging to them.”

The pursuer pleaded—“(1) The defenders having acquired the heritable rights condescended on in land situated in the parish of Strathblane, and they or their predecessors, the Glasgow Waterworks Commissioners, having in virtue of the said heritable rights constructed the corporeal subjects and works condescended on in on or through the said land, and the defenders being now the owners of the said corporeal subjects and works, are proprietors or owners of lands and heritages, and are heritors in the said parish in respect thereof. (2) The defenders being heritors, proprietors, and owners of lands and heritages in the said parish, and the heritors of the said parish having lawfully and without objection imposed an assessment upon all heritors, proprietors, and owners of lands and heritages in the said parish, estimated on the real rent of all lands and heritages within the said parish, and the sums sued for being the true proportion of the said assessment that falls to be borne by the defenders in respect of the real rent value of their said lands and heritages, the pursuer is entitled to decree as craved.”

The defenders pleaded—“(2) The defenders not being heritors in the said parish in respect of their interests in the said pipes and conduits are entitled to absolvitor. (4) In any view, the defenders, even if heritors of the said parish as in right of said pipes and conduits, are not liable to be assessed as such according to the entries in the valuation roll, and should be assoilzied from the conclusions of the summons.”

Both parties agreed to take as an example of the terms in which the servitude or way-leave had been conveyed to them a conveyance by Sir Archibald

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Edmonstone of Duntreath in the year 1858, whereby he conveyed to the Waterworks Commissioners, in the first place, 100 square yards of land, and, in the second place, “All and whole the heritable and irredeemable servitude right, privilege, and tolerance of a wayleave through that portion of my said lands coloured blue on the said plan, of the width of eight yards, and distinguished further by the letter F on the foresaid plan, and extending in whole to 2461 square yards and one-third of a square yard or thereby. … Declaring that the said servitude-right, privilege, and tolerance of wayleave through the said portion of land is hereby conveyed to my said disponees for the purpose of their opening up the surface of the land, and forming, constructing, and maintaining therein a culvert or conduit for conveying water to the city of Glasgow and executing all necessary works in connection therewith: Declaring always, as it is hereby provided and declared, that my said disponees shall be bound and obliged, after forming and constructing the said culvert or conduit, to restore satisfactorily the surface of the land, but they shall have liberty of access thereto on all necessary occasions in all time coming hereafter for inspecting, repairing, maintaining, or altering the said culvert or conduit, or any of the works connected therewith or adjacent thereto.” Infeftment was taken upon this conveyance as well as upon the others.

Parties also agreed to admit that the tunnel or aqueduct constructed by the defenders consisted in part of a simple bore through the rock, in part of a bore lined with brickwork or masonry, and in part of cast-iron pipes laid under ground. The defenders' whole reservoir, pipes, &c., were entered in the valuation roll at the yearly rent or value of £8376.

The Act 1572, cap. 54, ratifies an Act of the Privy Council, 1563, whereby two-thirds of the expense of the upkeep of churches were thrown on the “parochinars,” and one-third on the parson.

The Act 1663, cap. 21, where competent manses are already built, ordains “the heretors of the paroch to relieve the minister and his executors of all cost, charges, and expenses, for repairing of the aforesaid manses.”

On 19th March 1898 the Lord Ordinary ( Stormonth Darling) found that the defenders were not heritors of the parish of Strathblane, nor liable to be assessed for the maintenance and upkeep of the church and manse of the said parish, except in respect of their being proprietors in fee of certain lands in the said parish; to that extent found, decerned, and declared in terms of the declaratory conclusions of the summons, and quoad ultra assoilzied the defenders.

Opinion.—“This question relates to the liability of the defenders as proprietors of the Loch Katrine Water-works to be assessed as heritors of the parish of Strathblane; through which the water-works pass, for repairing the manse of that parish.

The defenders are owners in fee of over 13 acres in the parish, acquired for the purpose of erecting buildings and other structures connected with their works. They do not dispute that in respect of these 13 acres they are ‘heritors’ of the parish in the sense of the Act 1663, c. 21. But they are also vested by conveyances from Sir Archibald Edmonston and other proprietors in certain heritable rights which have enabled them to cut tunnels through the rock, and lay pipes in the soil. In the typical instance selected for the purpose of this case the subject conveyed is described as ‘all and whole the heritable and irredeemable servitude right, privilege, and tolerance of a wayleave through that portion of my said lands coloured blue on the said plan,’ and then follows a declaration that the said servitude right is granted to the disponees for ‘the purpose of their opening up the surface of the land, and forming, constructing, and maintaining therein a culvert or conduit for conveying water to the city of Glasgow,’ that they are afterwards to restore satisfactorily” the surface of the land, and that they shall have liberty of access thereto on all necessary occasions for inspecting, repairing, or altering the works. The defenders maintain that they are not heritors of the parish in respect of these wayleaves, or of the works constructed by virtue of them.

Now, if the question were whether the defenders, in respect of their pipes and conduits, were owners and occupiers of lands and heritages within the meaning of the Poor Law Act, and liable as such to poor-rates, the case would be governed against the defenders' argument by the judgment of this Court and the House of Lords in Hay v. Edinburgh Water Company, 12 D. 1240, and 1 Macq. 682. In that case the Water Company had no conveyance of any right of property in the soil, but merely a statutory right to lay their pipes under the streets of the city; yet they were held to be, in the sense of the Act, both owners and occupiers of the ground in which their pipes were laid, all necessity for a critical examination of the nature of their right being avoided by the statutory interpretation of the word “owner” as including all persons “in the actual receipt of the rents and profits of lands and heritages.” In Craig v. Edinburgh Tramways Company, 1 R. 947, this principle was extended to the liability of a tramway company for poor-rates in respect of the portions of the streets occupied by their rails; and in Barony Parish Road Trustees v. Glasgow Water-Works Commissioners, 7 Macph. 106, the predecessors of the defenders were held liable, on the same principle, for statute-labour assessment in respect of their subterranean water-pipes.

But the question here is not the same as in these cases. A man may be owner of lands and heritages within the meaning of the Poor-Law Act, or the Statute-Labour Act, without being a ‘heritor’ in the sense of the Act 1663, c. 21. That term has been the subject of many judicial decisions, which have excluded from its application a

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number of substantial heritable rights. First, it was questioned whether a superior was within the term, and in Dundas (1778), M. 8511, the Court, after an inquiry into the general practice over Scotland, held that he was not, and that ‘by heritors in the Statute 1663 proprietors are to be understood.’ Then in the case of Bell (1805), M. voce ‘Kirk,’ App. No. 3, it was held that a coalowner was not liable in the expense of building or repairing a church, apparently on the principle that as his profit was casual he should not be made to bear a permanent burden, although it was right that he should bear his share of annual burdens like assessments for the maintenance of the poor. Then in the case of Anstruther (1823), 2 S. 306, it was held, on the same principle, that a liferenter was not liable even in the expense of repairing a church. Finally, in the case of M'Laren v. Clyde Trustees, 4 Macph. 58, aff, 6 Macph. (H.L.) 81, it was held that a long leaseholder, though appearing in the valuation roll as proprietor by virtue of the Valuation Act of 1854, was not liable in the expenses of rebuilding a parish church, because section 41 of that Act provides that ‘nothing contained in this Act shall exempt from or render liable to assessment any person or property not previously exempt from or liable to assessment.’ Lord Neaves in deciding the case pointed out that if the assessment had been imposed according to the valued rent, no question could have arisen, and that the fact of the heritors choosing to assess according to the real rent, though it might alter the details of the assessment, could not alter the class of persons who were liable. His Lordship then said, ‘The original enactments on this subject laid the liability upon the “parishioners”; but from the earliest period this phrase has been construed to mean the heritors or proper owners of lands and heritages within the parish. It has been decided that superiors are not liable, for they have not the dominium utile, and that liferenters are not liable, for they have not the perpetual or permanent right.’

There seems to run through all these decisions, extending over nearly a century, an equitable endeavour to make the burden of assessment coincident with the benefit presumably to be derived from the ecclesiastical apparatus of the parish. But whatever may have been their ruling idea, they must, I think, be accepted as having stamped the phrase ‘heritors’ in its relation to ecclesiastical assessments, with a limited signification, which demands, as sine qua non, the ownership in fee of the dominium utile of lands.

It was urged by counsel for the pursuers that the question did not turn on the nature of the right under which the defenders had constructed their works, but on the nature of the works themselves, and that if these were corporeal and heritable, and belonged to the defenders in perpetuity, it was enough to make the defenders liable as heritors. But I think, under the decisions, that I am bound to examine the defender's title, and if I find that it falls short of land ownership, and confers merely the right to make a certain use, though it may be a perpetual use, of lands belonging to another, then I cannot declare the holder of such a right to be a ‘heritor.’ The familiar and cognate servitude of aqueduct carries with it the right permanently to occupy the land of the servient tenement with artificial works, and there is an interesting discussion of the nature of that right in Highland Distillery Company v. Reed, 4 R. 1118. But if the servient tenement were situated in parish A, and the dominant tenement in parish B, nobody would suggest that the holder of the servitude ought, by virtue merely of that right, to be classed as a heritor in parish A.”

The pursuer reclaimed, and argued—Whatever might be the terms of the Act 1572, cap. 54, it was long since settled that parochinars must be taken to mean what the Act 1663, cap. 21, called heritors, i.e., those only having immoveable property in the parish— Boswell v. Duke of Portland, December 9, 1884, 13 S. 150, at 153. This restricted interpretation showed that the Lord Ordinary was wrong in attempting to make the capability of receiving benefit from the ecclesiastical apparatus of the parish a test of liability to assessment as a heritor. The assessment was imposed upon real estate, not on persons, though the phraseology of the statute rather pointed to persons, and it was immaterial whether the owner of real estate could avail himself of the benefit of the church or not. What was proposed to be assessed here was corporeal immoveable property. The right of the Corporation might be called a servitude, but that phrase was inaccurate. There was no dominant tenement. The right could not be extinguished. It entitled the Glasgow Corporation to precisely the same kind of beneficial enjoyment as if there had been a formal conveyance of lands. In the case of Hay v. Edinburgh Water Company, July 13, 1850, 12 D. 1240, and February 13, 1854, 1 Macq. 682, it was held that the defenders were owners or occupiers of heritages, although their right was no more than a wayleave; and although the Poor Law Amendment Act 1845 was to some extent the foundation of that decision, the judgment of the House of Lords proceeded upon the broader ground. Certain classes of persons had indeed been held exempt from assessment by decision. But all of these, excepting superiors, had this feature in common, that their interest in the lands was not of a permanent nature. As for superiors, their exemption must be attributed to the principle that no heritage was to be subjected to a double assessment. The list of exemptions was not to be added to lightly. The fact that the defenders were a public body and had acquired their rights under powers conferred by statute was immaterial. Canals and railways were both liable to assessment— Anderson v. Union Canal Company, March 7, 1839, 1 D. 648; Macfarlane v. Monklands Railway Company, January 29, 1864, 2 Macph. 519;

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Scottish North-Eastern Railway Company v. Gardiner, January 29, 1864, 2 Macph. 537; Highland Railway Company v. Heritors of Kinclaven, June 15, 1870, 8 Macph. 858. If the defenders were liable to the assessment, the cases of the Scottish North-Eastern Railway Company, ut sup., and the Highland Railway Company, ut sup., left no doubt that the real rental, as it appeared in the valuation roll, was the true basis for calculating the assessment.

Argued for the defenders—The word “heritor” was practically convertible with landholder—Ersk. Inst. ii, 10, 56, 57, 63; cf. ii, 6, 11. But in considering the main question here, viz., who is a heritor? it must be borne in mind that decisions of the Court had materially qualified that broad proposition, and that with reference to the Acts anent the repairing of the churches and manses, the term heritor was confined to a limited selection from those who owned or had to do with lands. Thus, a superior was not a heritor— Dundas v. Nicolson, 1778, M. 8511; no more was a liferenter— Minister of Morham v. The Laird and Lady Binston, 1679, M. 8499; Anstruther v. Anstruther's Tutors, May 14, 1823, 2 S. 269; nor a titular— Swinton v. Laird of Wedderburn, 1663, M. 8499; nor a coal owner— Bell v. Earl of Wemyss, 1805, M. voce Kirk, App. No. 3; nor a long leaseholder— M'Laren v. Clyde Trustees, May 28, 1868, 6 Macph. (H.L.) 81. The principle running through all these cases seemed to be that no one was liable to assessment unless (1) he were able to avail himself of the benefit of the church, and (2) were “the feudal proprietor of the dominium utile”— Traquair's Trustees v. Heritors of Innerleithen, December 9, 1870, 9 Macph. 234, per Lord President Inglis, 250. If that test were applied here the defenders must escape. The Corporation of Glasgow could not avail themselves of Strathblane Parish Church, and they were not the feudal proprietors of the dominium utile of the land in which their pipes were placed. The most they had was a wayleave—a “servitude” as the conveyance itself described it—(see also Scottish Highland Distillery Company v. Reid, July 17, 1877, 4 R. 1118)—and as such not subject to assessment. Assessment for repair of church and manse was essentially a real burden— Douglas v. Heritors of Manor, 1695, M. 8501. The case of railway companies was not analogous, for they had a full right of property in their lands, subject to no qualification, though the superior of those lands could not enforce the feudal remedies against them. The words construed in Hay, ut sup., and in the Barony Parish Road Trustees v. Glasgow Waterworks Commissioners, November 13, 1868, 7 Macph. 106, were “owners and occupiers,” not “heritors.” On the question of the method of valuing waterworks, the defenders referred to Dundee Water Commissioners v. Dundee Road Trustees, December 21, 1883, 11 R. 392, and Magistrates of Glasgow, & c., October 3, 1884, 12 R. 3, and argued that these cases indicated the proper mode of discovering the basis upon which an assessment should be made.

At advising—