Scottish Court of Session Decisions

This was an action at the instance of Mrs Jane Naylor or Shearer, residing at No. 1 Kilmailing Terrace, Catheart, proprietrix of Nos. 1 and 11 Kilmailing Terrace, against Alexander Peddie and others, proprietors of Nos. 2 to 10 Kilmailing Terrace, inclusive. The summons concluded for declarator that the pursuer was absolute and unlimited heritable proprietrix of those steadings of ground known as Nos. 1 and 11 Kilmailing Terrace, “free of and unaffected by any right of servitude of access through or of entry upon” any part of the ground included in the said steadings “in favour of the defenders or any of them as proprietors of subjects in Kilmailing Terrace;” and for declarator “that no such right of servitude exists.” There was also a conclusion to interdict the defenders from molesting the pursuer in the peaceable possession and enjoyment of the said steadings.

The facts and circumstances out of which the action arose are thus stated by the Lord Ordinary in his opinion.

Opinion.—“The pursuer is owner of and resides in No. 1 Kilmailing Terrace, Cathcart, having purchased it in May 1894; and she is also owner of No. 11, which she acquired in May 1897. They are in the northmost division of the terrace, which consists of eleven small self-contained houses, built in a continuous line, with plots in front and gardens behind. The terrace is in Renfrewshire, in the suburbs of Glasgow, but not within the city.

Having thus acquired the house at each end, the pursuer brings this declarator against nine intermediate proprietors to have it declared that they have no right of access through or of entry upon either of her stances. Her object is to shut up a lane of 8 to 10 feet in width, running along the backs of the garden plots, and also a turning space for carts at the north or upper end of the lane, which is not through-going. This lane has all along, since the terrace was built in 1871–72, served for access to all the back gardens, both as a short cut for the occupiers themselves, and as an access for carts bringing coals or garden manure to the premises, or taking away house refuse from the ashpits, which are situated next the lane.

The lane is about 80 yards long. It enters from the public street at the south end, passing first the back garden fence of No. 11, and rising by a very slight gradient until it reaches the back garden of No. 1. A wooden fence separates the lane from the gardens. But each garden has a gate in the fence, and has also, next the lane, a built ashpit, the wall of which is in the line of the fence.

Narrow as the lane is, and with no thoroughfare, it was from the time it was first used made available for carting by the provision of a ‘turning space’ at the north end, about 20 feet by 15, occupying part of the lot on which No. 1 Kilmailing Terrace is built. No express mention is made of the lane in the titles. The measurements which they specify include the whole width of it, and the measurement of No. 1 includes the turning space.

There has never been a gate at the entrance to the lane, nor across any part of it, except that a previous owner of No. 1 put up a spar gate where it enters the turning space. This, however, was meant to keep out children, and it did not interfere, nor was it meant to interfere, with the use of the turning space by the neighbours. The gate was only fastened with a piece of rope, and after a few years it broke down and was not renewed.

As to the origin of this state of matters there is not much dispute. It originated with a company called the Glasgow and Suburban Dwellings Company Limited, which was incorporated in 1867 with a nominal capital of £250,000, divided into 50,000 shares of £5 each. Among the objects specified in its Memorandum of Association were:—(1) The acquisition of ground suitable for sites for dwelling-houses for the working classes; (3) the erection of such dwelling-houses, with all necessary conveniences, on the sites so acquired; (4) the disposal and use of such houses either by allotment among the members, or by sale for a price, or by letting.

The provisions of the articles of association which bear on the present question may be summarised thus: The shares were payable in monthly instalments of one shilling per share; but in the case of members to whom houses had been allotted this subscription was suspended during the period allowed for payment of the houses. Holders of four shares or under were entitled to one vote in the company, from five to ten shares two votes, and so on. A register was kept shewing the names and shareholdings of members desirous to acquire houses by allotment, the class of houses desired, and the locality. The directors were empowered to purchase sites and erect houses to suit the requirements of such applicants. Having done so, it was then their duty to prepare articles and conditions of allotment, setting forth the mode of allotment and the price of each house; and also rules applicable to each separate block, providing for upkeep, management, inspection, and the like. These having lain open for inspection, a list was made up of applicants for such houses, who had paid on their shares at least five per cent. of the price of houses of the class desired; and the directors thereupon allocated the houses by ballot among the applicants. Each allottee paid for his house by a terminable rent-charge according to a scale set forth in the articles of association, and the allottee was entitled to a formal disposition from the company on the completion of these payments, or sooner if he had paid half the price and granted bond for the remainder.

In the course of their business the company feued three or four acres of building land at Cat heart, with entry at Martinmas 1869, laid it out for building, and built houses for allotment among the members. Among other streets they laid out the north

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section of Kilmailing Terrace, the scheme including eleven continuous houses facing westward, with a public road on the west and south sides, and a lane behind running along the back plots. The three stages of laying out the ground, building the houses, and allotting the stances overlapped to a certain extent in point of time. The four northmost houses (Nos. 1 to 4 of the terrace) were first built. They were finished in 1871, Nos. 1 and 2 being completed somewhat in advance of the others. The remaining seven houses were built about a year later.

The company had previously prepared articles of allotment applicable to this and other parts of their ground in forty lots, of which this section of Kilmailing Terrace comprised lots 30 to 40. A plan, which is No. 29 of process, was also prepared and signed relative to the articles; and this was shown to intending applicants in the office of the secretary. It shows the lane open at the south end to an intended public street, but closed at the north end. It shows no turning space. The lane is shewn uncoloured, as not included in the building lots.

The two first allotments in Kilmailing Terrace were of Nos. 1 and 2, of date 14th November 1870. Nos. 3 and 4 were allotted respectively in February and December 1871, and the remainder between that date and May 1873.

Mr Walker (afterwards allottee of No. 1), along with his friend Mr Hunter, allottee of No. 2, made preliminary inquiries of one of the directors, and afterwards of the secretary. They decided to join the company and take the shares requisite for the allotment of a dwelling-house. In the course of their inquiries, plan No. 29 was exhibited to them both by the secretary and by the architect of the company, and they noted the advantage of having the lane.

Mr Walker entered into occupation at Whitsunday 1871, and Mr Hunter a few days later. At that time the company had laid the sewer along the lane, and I think it appears that they had laid out the lane. Within a week or two after, the company formed the lane by bottoming it with stones blinded with ashes, and running a whinstone kerb along it close to the line where the back fence was to be erected, and where the two first ashpits had already been built. This kerb was intended both as a water channel and also to keep carts using the lane from damaging the fence.

At the same time the company ran a fence along the lane at the back of Nos. 1 and 2 in a line with the back wall of the ashpits, and put gates in the fence for access to the lane. The remainder of the fence on that side of the lane was added as the houses were built.

The erection of the fence for No. 1 appears to have brought up the question of exit from the lane. The north end of it abutted on a public road, which, however, was in course of being closed. The alternatives presented were, either to provide a turning-space on the ground of No. 1, or to prolong the lane to the north-west so that it should skirt No. 1 and issue on the front street. Mr Walker describes how he and Mr Hunter (whose recollection on this point is not so clear) met with the secretary about it, and how Mr Walker chose the former alternative. This immediately received effect. The company's workmen were instructed to form and fence in the turning-space, and to include the south half of the disused road within Mr Walker's boundary fence. All this work done by the company was covered by the stipulated rent-charge except the formation of the lane. That fell under the category of roads and streets, which were separately charged for.”

The defenders made the following averment with reference to the lane and the turning-space:—“It was necessary for the reasonable and comfortable enjoyment of each of the said houses in Kilmailing Terrace that the proprietors thereof should have access to the back of their properties by the said lane, and also that they should have the use of the turning-space above referred to. Kilmailing Terrace was built so as to form a continuous line of building. Each house had a small plot of garden-ground in front, and had a garden with ashpit and other conveniences at the back. There was no access from the front to the back of the house except through the front door, and through two or in some cases three apartments. There was no through lobby or passage from back to front of the houses. It was and is practically impossible to carry manure for the garden and coals from the street in front through several apartments to the back, and to clean out the ashpits and carry the contents through several apartments to the street in front. Without the use of the said lane the houses would be practically uninhabitable. Further, the said lane is too narrow to allow of a cart being turned in it, and as the ground rises from the foot of the lane, it is practically impossible for a vehicle loaded with coals or other material to be backed up the lane, and so have egress after the load has been deposited.”

The defenders pleaded—“(2) Upon a sound construction of the titles of the said subjects the defenders are entitled to use the said lane and turning-space at the back of Kilmailing Terrace, and they are therefore entitled to absolvitor, with expenses. (3) The use of the said lane and turning-space being necessary for the convenient and comfortable enjoyment of the said properties in Kilmailing Terrace, the defenders are entitled to absolvitor, with expenses.”

The articles of allotment of the Glasgow and Suburban Dwellings Company Limited contained, inter alia, the following provision:—“ Eleventh. None of the houses to be allocated under these presents shall be used as a workshop of any description, nor for the purpose of carrying on any trade or business whatever, but this shall not be held to exclude such operations as may be be carried on in a dwelling-house without injury to the property or annoyance to the

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neighbours. None of the allottees, or of those deriving right from them, shall be entitled to alter their houses or the ground attached to them, externally or internally, in any way calculated to be injurious to the amenity of the neighbouring houses or detrimental to the house immediately adjoining; and in order to secure the observance of this condition, it is expressly stipulated that no such alterations shall be made until the sanction of the directors has been obtained thereto, whose decision shall be final and binding on all concerned.”

These and certain other conditions which need not now be particularly specified, were incorporated in the feu-disposition of No. 1 Kilmailing Terrace granted by the company to the pursuer's predecessor; they were therein declared to be real burdens on the subjects disponed; and the company bound themselves to insert similar conditions in all the conveyances to be granted by them of the other houses in the terrace. This was done in the titles of Nos. 2 to 11 inclusive, being all the remaining houses in the terrace.

None of the feu-dispositions contained any reference to the lane or turning place, the ground occupied by these being included in the land disponed to each of the allottees so far as ex adverso of his feu.

On 24th August 1898 the Lord Ordinary ( Pearson), after a proof, assoilzied the compearing defenders from the conclusions of the summons.

Opinion.—[ After setting forth the facts as above his Lordship proceeded]—“Thus the lane was part of the design of this portion of Kilmailing Terrace from the very first, although the plans did not show it as included in the stances; and the turning-space was part of the design from nearly the first, the existence of it depending upon whether the allottee of No. 1 chose that mode of providing an exit from the lane, or preferred to allow the lane to be continued over his ground westward to the street. In conformity with this scheme there has been open and unchallenged possession of lane and turning-space ever since, for the purposes I have mentioned, until the pursuer and her husband raised the question in the end of 1896, by which time they had acquired No. 1, but not No. 11.

Now, it appears to me that in a question between the original allottees, whether it had arisen between the owners of Nos. 1 and 2, or at a later period between the owner of No. 1 and any of the others, this is a plain case of the constitution, by implied grant, not merely of a servitude, but of mutual and reciprocal servitudes to answer a purpose beneficial to the community of feuars. This is not the same case as where a person grants part of his property without reservation, and then seeks to derogate from his grant by claiming a right of servitude over the part granted. In such a case the law, I presume, stands as it was expressed in Wheeldon v. Burrows, 12 Ch. Div. 31. In my view, each allottee, approaching (as he could not but do) through the medium of becoming a shareholder of the company was in turn committed to the company's scheme as a whole, by the very act of accepting an allotment from a company of which he was a member. Indeed, the case may be put on the ground of implied agreement, anterior to all the implied grants, and binding upon all who should thereafter become members of the company.

If these views be sound, they dispose of the distinction suggested in argument between the case of No. 1 and of No. 11, the latter of which was acquired by the pursuer after the dispute had arisen, and just before the summons was raised. These differ in this, that while No. 1 provides the turning-space, it gets the benefit of access by the lane over the other lots. But No. 11 gets no advantage from the lane, or a very unsubstantial one, lying as it does next the entrance; though it does take this benefit from the lane and turning-space, that if carts are required to leave the street for the service of No. 11, they can go up and turn on another person's ground instead of upon No. 11. This distinction, however, while it discloses an exception to the mutuality of the benefit, in the case of one feuar, would not I think have saved him from the consequences of applying for and obtaining the allotment.

It follows that the pursuer has not, as regards either lot, any higher right than a singular successor acquiring a subject over which there exists, and is exercised an open and apparent servitude of way. There is this peculiarity in her title to No. 11, that while it was allotted in 1873 to William Shanks, he seems not to have obtained a disposition from the Glasgow and Suburban Dwellings Company. The consequence was, that on that company going into voluntary liquidation in 1877, the subject became vested in its successor, the Heritable Investment Bank Limited, which was incorporated in that year for the purpose, inter alia, of ‘acquiring the whole properties, assets, and business of the Glasgow and Suburban Dwellings Company Limited, subject to implement and performance of the whole contracts and obligations of the said company in relation thereto.’ The disposition was ultimately granted by the bank to Mr Mason, who had come in place of the original allottee, and from whom the pursuer acquired the subjects. I see nothing however in these facts which should endanger the continuance of the servitude of No. 11 if it was previously in existence.”

The pursuer reclaimed.

The arguments of parties sufficiently appear from the opinions of the Judges. The following cases were referred to by the pursuer:— Cochrane v. Ewart, April 11, 1861, 4 Macq. 117, per L.-C. Campbell; Louttit's Trustees v. Highland Railway Company, May 18, 1892, 19 R. 791; North British Railway Company v. Park Yard Company, Limited, June 20, 1898, 25 R. (H.L.) 47, per Lord Watson, 52; Suffield v. Brown, 4 D. J. & S. 185; Wheeldon v. Burrows, L.R., 12 Ch. D. 31; Gow's Trustees v. Mealls, May 28, 1875, 2 R. 729; Brown v. Alabaster, L.R., 37 Ch D 490; Preston's Trustees v. Preston, January 13, 1860, 22 D. 366; M'Laren v. City of Glasgow Union Railway Company,

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July 10, 1878, 5 R. 1042, per Lord J.-C. Moncreiff, 1018; Cullens v. Cambusbarron Co-operative Society, Limited, November 27, 1895, 23 R. 209; Walton Brothers v. Magistrates of Glasgow, July 20. 1876, 3 R. 1130; and King v. Barnetson, October 31, 1896, 21 R. 81.

In addition to the above cases the defenders referred to Watts v. Kelson, L.R., 6 Ch. 166; Russell v. Watts, L.R., 25 Ch. D. 559, 10 A.C. 590, per Lord Selborne, 602; Compton v. Richards, 1 Price, 27; Allen v. Taylor, L.R. 16 Ch D 355; Swansborough v. Coventry, 9 Bing. 305; and Union Heritable Securities Company, Limited v. Mathie, March 3, 1886, 13 R. 670.

At advising—