Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Ayr by Arthur Metcalfe, draper, Hamilton Street, Girvan, against James Purdon, butcher, Hamilton Street, Girvan, in which the pursuer prayed the Court (1) to find and declare that certain subjects (held by the defender) were subject to an implied servitude of light and air in favour of certain adjoining subjects (held by the pursuer) by a window in the west wall of the dwelling-house thereon; (2) to find and declare that the defender was not entitled to make any erection which would obstruct the access of light and air by means of the said window; and (3) to ordain the defender to remove certain erections recently made by him or to grant warrant to the pursuer to do so.

The subjects referred to were both parts of certain subjects embraced in one long lease, to their respective parts of which the pursuer and defender had acquired right by assignation.

By lease dated 5th July 1765, and recorded in the General Register of Sasines 16th November 1860, John Hamilton, Esquire of Bargany, let to John Logie, late in Dalfask then in Newton of Girvan, for 900 years from Martinmas 1851, a piece of ground on the upper side of Girvan Burn Bridge in the parish of Girvan and county of Ayr.

In 1872 the right to this long lease was vested in Alexander Kelly and Agnes Davidson or Kelly, his spouse, who prior to that date possessed the whole of the subjects contained in the long lease; and the subjects were then occupied part by William Morton, draper, Girvan, and part by Fergus Steven, flesher, Girvan, and others.

By disposition and assignation dated 23rd November, and recorded in the Division of the General Register of Sasines applicable to the County of Ayr 6th December 1872, Alexander Kelly and Agnes Davidson or Kelly, his spouse, assigned the lease to William Morton, “but in so far only as regards the following portion of the subjects leased, viz.—‘All and whole that piece of ground with the buildings thereon occupied by the said William Morton, bounded on the west partly by the property assigned by the said Alexander Kelly and Agnes Davidson or Kelly to the said Fergus Steven, and partly by the piece of ground excam bed to the said Alexander Kelly and Agnes Davidson or Kelly by the Commercial Bank of Scotland, on the north by Hamilton Street, on the south by property belonging to John Miller, civil engineer in Edinburgh, and on the east by the Girvan Burn, now called the Mill Burn, lying in the burgh and parish of Girvan and county of Ayr; and all and whole that piece of ground extending to 5 poles 5 yards 4 feet and 36 inches or thereby, imperial measure, lying in the burgh and parish of Girvan and shire of Ayr, being the piece of ground excambed to the said Alexander Kelly and Agnes Davidson or Kelly by the Commercial Bank of Scotland as aforesaid.”

The pursuer had now acquired right to the said lease, in so far as conveyed to William Morton, and to the pieces of ground described in the assignation in his favour.

At or about the same time as the said Alexander Kelly and Agnes Davidson or Kelly, his spouse, granted the disposition and assignation to William Morton, they assigned the lease to the extent of the remainder of the subjects leased to Fergus Steven, and to this portion the defender had now acquired right.

In the west wall of the house erected upon the part of the leasehold subjects acquired by the pursuer there were two windows which looked out on the subjects acquired by the defender.

The pursuer maintained that the southmost of these windows existed prior to the severance of the property above narrated; that its existence and the purpose for which it was built were then manifest; and that it was then and still was necessary for the light, ventilation, and comfortable enjoyment of his house. The pursuer further averred as follows:—“The said subjects acquired from the said Alexander Kelly and Agnes Davidson or Kelly by the said Fergus Steven and now belonging to the defender were accordingly so acquired by him under an implied servitude of light and air in favour of the adjoining subjects by means of said southmost window, at the same time sold and conveyed by them to the said William Morton and now belonging to the pursuer. The said implied servitude was continuously enjoyed by the pursuer and his authors until recently, and the pursuer is still entitled to the enjoyment thereof.”

No mention of or reference to any such servitude as that now claimed appeared in the titles of either the pursuer or the defender.

The other facts in the case sufficiently appear from the interlocutor and note of the Sheriff-Substitute, and the opinion of the Lord President.

The defender pleaded—“(1) The pursuer's averments are irrelevant and insufficient to warrant the conclusions of the summons. (2) There being no servitude constituted in the pursuer's favour, he is not entitled to interfere with the defender's subjects or to use the said subjects as servient subjects. (3) There being no servitude of light and air constituted in favour of the pursuer in his titles or implied in any way

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in his favour, the pursuer's action is unfounded and should be dismissed with expenses. (4) There being no restriction of any kind in the defender's titles, he is entitled to the free and absolute use of his property, and to build any erections thereon and to the extreme verge of his ground without any interference on the part of the pursuer, and cannot be restrained from so doing. (5) The alleged servitude claimed by the pursuer being of a negative character cannot be acquired by prescription nor be constituted except by grant.”

On 17th January 1901 the Sheriff-Substitute ( Paterson) pronounced the following interlocutor:—“Finds in fact that on 23rd November 1872 the deceased Andrew Kelly and spouse, who were then in right of a long lease of the whole subjects now belonging in part to the pursuer and in part to the defender, conveyed to the pursuer's author one portion of these subjects, and at the same time conveyed to the defender's author the other portion of these subjects, each of the subjects so conveyed being described as bounded by the other: That at the date of these simultaneous conveyances there existed in the west wall of the dwelling-house, now the property of the pursuer, a window opening on the property now belonging to the defender, of the following dimensions, about 5 feet 7 inches high, by 3 feet 6 inches wide, which had been struck out and formed in this wall in the year 1870 to give light to a kitchen on the pursuer's property, and which has existed and afforded light to the kitchen until blocked up by the defender about March 1900: That there is no grant in the pursuer's title of a servitude of light and air by this window, and that there is no restriction in the defender's title of his full rights of ownership, and no reference in either title to the existence of this window: That the pursuer has failed to prove that the servitude of light and air by this window is essential for the convenient and comfortable enjoyment of the tenement: Finds in law that there being no grant of a right of servitude of light and air in the pursuer's title, nor any restriction in the defender's title of his rights of ownership, and the continued existence of this window not being essential for the convenient and comfortable enjoyment of the pursuer's tenement, the pursuer is not entitled to the declarator craved, viz., that the subjects of the defender are subject to an implied servitude of light and air by this window in favour of the pursuer's subjects, and that the defender is not entitled to make any erection on his property which will obstruct the access of light and air to the pursuer's property by this window: In respect of these findings assoilzies the defender from the conclusions of the action: Finds him entitled to expenses,” &c.

Note.—“It is thought to be proved by the evidence of Mr Morton and by the accounts produced that the window in dispute was struck out in 1870, and existed at the date of the severance of the property in 1872. The pursuer contends that the severance having been by simultaneous conveyances to his and the defender's author, and this window having existed during the unity of possession and at the date of severance, the grant of a servitude right to continue its use was implied.

Prior to 1870 the tenement now belonging to the pursuer was possessed and enjoyed without any window in this west wall, and it does not follow from the fact that the then proprietor of both the pursuer's and the defender's subjects struck out this window for his own convenience, that it is necessary for the comfortable and convenient enjoyment of the pursuer's tenement, or that the implication is involved that at the severance of the two properties there was an implied grant of servitude in favour of the pursuer's tenement, and an implied restriction on the defender's property— Gow's Trustees v. Mealls, May 25, 1875, 2 R. 729.

According to the evidence of Mr Hunter, architect, ‘it would be quite easy to introduce a roof light between the oxters of the loft and the kitchen wall, which would light and ventilate the kitchen near the fireplace without injuring to any appreciable extent the usefulness of the loft above the kitchen.

The rule of the law of Scotland is that negative servitudes can be constituted only by grant, and it is questionable whether that law recognises implied grant as a mode of constituting negative servitudes— Dundas v. Blair, March 12, 1886, 13 R. p. 759.

Even assuming that the doctrine of implied grant has been received in Scotland— Heron v. Gray, November 27, 1880, 8 R. 155—it ought to be very cautiously applied. The Sheriff-Substitute is of opinion that the facts of the present case do not call for its application here.”

The pursuer appealed to the Sheriff ( Brand).

On 18th June 1901 the Sheriff pronounced the following interlocutor:—“The Sheriff, having heard parties' procurators and considered the cause, adheres to the interlocutor appealed against, and dismisses the pursuer's appeal: Finds the defender entitled to additional expenses,” &c

“ Note.—I regret the delay which has arisen in the disposal of this case, but it has been to some extent unavoidable.

The main averments upon which the action is based are, that the property is ‘subject to an implied servitude of light and air in favour of the adjoining subjects,’ and accordingly that the defender is not entitled ‘to make any erection on the area of the said subjects belonging to him’ that will in any way obstruct the access ‘of light and air’ to the adjoining subjects belonging to the pursuer. In other words, it is maintained that the defender, as servient owner, is to be restrained from exercising his full rights as proprietor of the subjects belonging to him. As the Sheriff-Substitute has found, there is no grant in the pursuer's titles of a servitude of light and air by the window in question, and no restriction in the defender's titles of his full rights of ownership; and further there is,

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as the Sheriff-Substitute also points out, no reference in either title to the existence of the window in question. Notwithstanding this state of the titles, I think that if the pursuer could have proved that the alleged servitude was essential to the convenient and comfortable enjoyment of his property, it might with reason and safety have been inferred and the grant contended for implied. There are a number of authorities which support this view, and in particular— Cochranes v. Ewart, January 13, 1860, 22 D. 358, affirmed March 22, 1861, 4 M'Q. 117. As also Maclaren v. City of Glasgow Union Railway Company, July 10, 1878, 5 R. 1042; and Cullens v. Cambusbarron Co-operative Society, Limited, November 27, 1895, 23 R. 209.

Very much accordingly turns in this case on whether the continued existence and use of the window in question is necessary to the convenient and comfortable enjoyment of the subjects belonging to the pursuer. The Sheriff-Substitute has formed the opinion, based mainly on the skilled evidence of the witness Hunter, that such continued existence and use is not necessary. With that opinion I entirely concur. No doubt a skilled witness called for the pursuer, viz., Eaglesham, depones that the window in question is necessary. But the weight of his evidence is somewhat impaired by the admission made by him in cross-examination ‘that the kitchen might be lighted from the roof, but you have a room over the kitchen which would require to be cleared away to make a satisfactory light for the kitchen.’ Moreover, Eaglesham admits that his examination of the pursuer's property was made more with a view to ascertaining whether the existing window was necessary ‘in the state of the property at present,’ than of ascertaining whether the kitchen might be adequately lighted from the roof.

According to the pursuer's witness, William Morton, certain operations which took place in 1870 led to the blocking up of the back door, the converting of the window on the east side of the kitchen into a door, and the slapping out of the window in question.

There is no reason why the window should not now be transferred to the roof. The Sheriff-Substitute seems to have entertained some slight doubt whether the doctrine of implied grant has been received in Scotland. For my own part I see no good reason for such doubt if it was entertained, and at all events the case to which he referred in this connection, viz., Heron v. Gray, November 27, 1880, 8 R. 155, affords no aid in the disposal of the present case. The circumstances are totally different. Lord Gifford, who pronounced the judgment of the Court in that case, says that in cases of urban property with a maindoor sunk area and separate flats above there is ‘an implied servitude in all such cases in favour of the proprietors of the upper flats that the proprietor of the maindoor house shall not erect buildings in the back green so as to obstruct their rights.’

This opinion rightly assumes that the erection of such buildings would interfere with the convenience and comfortable enjoyment of their properties by the owners of the upper flats, an assumption at direct variance with what has been held to be proved in the present case in regard to the window in dispute.

Reference may also be made to the cases of the Union Heritable Securities Company, Limited v. Mtothie, March 3, 1886, 13 R. 670, and Morris v. M'Kean, February 19, 1830, 8 S. 564.

Upon the whole matter, and while it must be said that in the debate on the appeal the pursuer's case was handled with great skill, I see no reason for doubting that the interlocutor under review is well founded in fact and law.”

The pursuer appealed, and argued—The right to light claimed here was necessary, and must be held to have been impliedly granted. A servitude could be constituted by implied grant in such circumstances— Cochranes v. Ewart, January 13, 1860, 22 D. 358. It did not matter that it was a negative servitude which was claimed, for it had been decided that such a servitude could be so constituted— Heron v. Gray, November 27, 1880, 8 R. 155, 18 S.L.R. 113. That was even a stronger case than this, for in it the titles to the servient tenement bore that there was no servitude. The test was what was reasonably necessary for the enjoyment of the property at the date of the severance— Gow's Trustees v. Mealls, May 28, 1875, 2 R. 729, at p. 737, 12 S.L.R. 458. And therein lay the distinction between the present case and Dundas v. Blair, March 12, 1886, 13 R. 759, 23 S.L.R. 526, because in that case the window in question had only been put in after the date of the severance of the properties.

Argued for the defender—The basis of the claim here was implied grant of a servitude, but a negative servitude could not be constituted by implication, and a singular successor with a clear title could not be restricted in the use of his property by any implied agreement between the assigner and assignee of the other portion of the original property— Dundas v. Blair, cit. sup.; Inglis v. Clark, December 7, 1901, 39 S.L.R. 193. The case of Heron v. Gray, which was relied on by the pursuer, was one dealing with the law of tenement and was not applicable here. The registration of a long lease did not change its character— Stroyan v. Murray, July 17, 1890, 17 R. 1170, 27 S.L.R. 896. The pursuer therefore was a tenant, and there was no authority for one tenant acquiring a servitude over the holding of another tenant. But, further, on the facts the window was not required for the reasonable enjoyment of the property.