Scottish Court of Session Decisions

Lord Kinnear.—I regret that I am unable to agree with the Lord Ordinary. It is not surprising that the defenders should think it a hardship to be deprived, by what they no doubt consider an unneighbourly action on the part of the pursuer, of a convenient access which they have long enjoyed to the gardens behind their houses. But we are to determine the legal rights of the parties, and I am unable to see any good ground in law for holding that the defenders have any right or servitude in or over the properties of the pursuer.

The facts are fully and very clearly explained in the Lord Ordinary's opinion, and I state them for the most part in his Lordship's words. The parties are proprietors respectively of houses in a street called Kilmailing Terrace, in Cathcart. This terrace consists of eleven small self-contained houses built in a continuous line, with plots in front and gardens behind; and behind the gardens there runs a lane of 8 to 10 feet in width which has been used as an access for carts bringing coals or garden manure to the premises, or taking away house refuse from ashpits which are placed in the gardens. This lane is not a thoroughfare, being closed at the north end, and it is not broad enough for a cart to turn, but at the north end there is a turning-space for carts which occupies part of the lot on which the northernmost house, No. 1 Kilmailing Terrace, is built. The pursuer is proprietor of No. 1 at the north end, and also of No. 11 at the south end of the terrace, and she brings this action against the intermediate proprietors to have it declared that they have no right of access through or of entry upon either of her properties. The ground was originally laid out for building by a company called the Glasgow and Suburban Dwellings Company, Limited, who were proprietors of the whole; and there can be no question that the construction of a lane running behind the back gardens was part of the original building scheme of this company. The objects of the company, according to its memorandum of association, were the acquisition of suitable sites, the erection of dwelling-houses, and the disposal and use of such houses, either by allotment among the members, by sale for a price, or by letting. The company drew up articles of allotment, and they prepared a plan applicable to the part of their, ground which afterwards became Kilmailing Terrace, which was shewn to applicants for building lots in the office of the secretary. The plan shews the lane open at the south end to an intended public street, but closed at the north end. It shews no turning-space, and it shews the lane uncoloured as not included in the building lots. The first allotments were of Nos. 1 and 2 in November 1870, Nos. 3 and 4 were allotted in 1871, and the remainder between December 1871 and May 1873. The pursuer's title to No. 1 begins with the feu-disposition to the first allottee, James Walker, which is dated in April 1872, but Walker entered into possession at Whitsunday 1871. By that time it would appear that the company had laid out the lane, but it was not completely formed until some weeks later. The turning-space was constructed afterwards by an arrangement to which Mr Walker was a consenting party, and since 1871 or 1872 the lane has been used in the manner I have already mentioned without objection on the part of any of the proprietors. The question is, whether the defenders are entitled to continue that use so far as it affects the pursuer's property without her consent.

Now, it is not disputed that, on the face of her titles, the pursuer has the absolute and exclusive property of the portions of the lane ex adverso of her houses, including the turning-space at the north end, and which forms part of No. 1. ln the disposition of No. 1 there is a reference to the feuing-plan, but it is referred to solely for the purpose of ascertaining the lot intended to be conveyed. There is no reference for the purpose of importing conditions into the grant, or for anything else contained in the plan, excepting only the situation of the property. It is true that certain conditions are inserted in the disposition for the benefit of other feuars, and the superiors bind themselves to insert like conditions in other titles to be thereafter granted. This no doubt establishes community of interest in the subject-matter of the conditions attached to each feu. But then the use of the lane is not one of them, and therefore it is altogether impossible to deduce from the title any right to the servitude in question in favour of other properties in Kilmailing Terrace. Again, it is true that the defenders have enjoyed the right of access for twenty years, but possession for twenty years without a title is of no avail to create a right of servitude. A servitude may be acquired by possession for forty years without a title, but I understand it to be admitted, and at all events it is clear, that the defenders' possession for a shorter time will not help them. I am unable to accept the Lord Ordinary's doctrine that each allottee 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.” If an individual buys property from or sells to a company of which he is a shareholder, his rights and liabilities under the contract of sale are exactly the same as if he were not a shareholder. His right depends on his contract, and when it is completed upon his title; and he is no way affected by any knowledge he may acquire through membership of the company of any intention which the company may have entertained. The suggested ground of decision is in my opinion unsound. But assuming the feuars to be affected with knowledge of the company's building scheme, they knew no more than that it was designed to use part of the solum as a lane, but until that design was carried out by embodying it in the conditions of the titles which they granted to their feuars, it remained in the power of the superiors, in whom the property stood vested, to abandon that part of their project altogether; and I think they abandoned it effectually when they conveyed that part of the solum which they had proposed to occupy in that way in separate portions to separate proprietors, to be held by each under an absolute title.

The only remaining ground on which it was suggested that the defenders have acquired a right over the pursuer's property is, that such right is the subject of an implied grant according to the doctrine established in Ewart v. Cochrane . I am of opinion that here also the defenders' case fails. The doctrine of implied grant is stated thus by Lord Chancellor Campbell,—“I consider the law of Scotland as well as the law of England to be that, when two properties are possessed by the same owner, and there has been a severance made of one part from the other, anything which was used and was necessary for the comfortable enjoyment of that part of the property which is granted shall be considered to follow from the grant if there are the usual words in the conveyance. I do not know whether the usual words are essentially necessary, but where there are the usual words, I cannot doubt that that is the law.” And, then, in applying that general principle of law to the particular case, his Lordship says,—“What we have to consider in this case is, what in fact was the enjoyment in the year 1819 when the grant was made. It seems to me quite clear that from the year 1788, when this tanyard was formed, the water which fell from the clouds or which in times of flood came up from the earth, or which was discharged from the tanyard, was conducted by a syvor to the land now occupied by the defenders. There can be no doubt that this was the manner in which it was conducted and absorbed, and it seems to me to be clearly shewn to have been essentially necessary for the convenient use of the tanyard, and to have been enjoyed at the time when the conveyance was made.” “The grant was of this tanyard, ‘and that as the whole subjects are presently possessed by us,’ together with all right, title, interest, and so on, ‘with the pertinents.’” “Then,” his Lordship says, “as the subjects of the ground were then possessed, the tanyard, along with the gutter to the hole, was so enjoyed, and it was necessary to the reasonable enjoyment of the property.” Now, I do not see how the doctrine so laid down can be applied to the present case. I do not think very great importance should be attached to the words “as presently possessed,” because I think the Lord Chancellor indicates that the facts would probably have been sufficient to support the judgment if these which he describes as usual words had been absent. But the fact which these words express is indispensable, whether the words are used or not. The material points are that the right which is held to be implied in the grant of the severed portion of a property the rest of which is retained by the grantor must till the time of the severance have been enjoyed and must be necessary for the reasonable enjoyment of the property. I think it very doubtful whether the lane can be said to be necessary, although it is certainly very convenient for the enjoyment of the properties in Kilmailing Terrace. But it is more material that the right was not in fact enjoyed at the time when the properties in question were granted to the several feuars, because neither the houses and gardens which were to be served by the lane nor the lane itself were in existence. When the first grant was made the formation of the lane was nothing but a project which might be abandoned by the superiors and vassal at pleasure; and it is not pretended that it was then or is now a necessary access to the properties, which have ample means of access from the street in front. I think it is very material to consider how the doctrine could be applied to the grant of the pursuer's property No. 1. At that time the lane was not completely formed, and none of the other houses was built. The conveyance to Walker contains no reservation of any right to the grantors or to the future disponees of their remaining properties in that part of the subjects conveyed which is now occupied by the turning-place. The doctrine of implied grant cannot create a burden on the grantee in favour of the grantor, and I cannot doubt that the law laid down by Lord Justice Thesiger in the case cited by the Lord Ordinary holds good in the law of Scotland as well as in the law of England,—“If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant.” I consider it to be clear therefore that the pursuer holds the entire property included in the conveyance of No. 1 free from any burden or servitude whatever that can be suggested as resting on the doctrine of implied grant. It follows that when the conveyance was made to No. 2 he could acquire no right whatever in No. 1 by implied or indeed by express grant, because the grantor had already conveyed away No. 1 without reservation. The hypothesis of an implied grant to No. 1 of a servitude over the portion of the lane conveyed to No. 2, as the subject of mutual servitude for the benefit of all the owners in the terrace, seems to me to be inconsistent with the exclusion of No. 2 from the portion appropriated to No. 1, which is the necessary consequence of the unqualified conveyance to Walker. But at least No. 2 was, like No. 1, conveyed without reservation, and therefore no new right could be given to any other proprietor inconsistent with the exclusive right of property conferred on the immediate grantee. In the same way each successive grant of a building stance in the terrace rendered it impossible, as regarded that particular subject, to create any new burden in favour of future grantees of other stances. All this makes it very difficult to work out the theory of implied grant in reference to such a subject. But the fundamental condition of the doctrine appears to me to be excluded by the nature of the subject-matter. The one indispensable condition, as Lord Campbell expounds the doctrine, is previous possession and enjoyment by the grantors; and when a piece of vacant ground is parcelled out for building, there can be no previous enjoyment by the owner of the unoccupied sites of a servitude for the benefit of dwelling-houses not yet erected. It seems to me impossible to hold that the purchaser of the first parcel given off, with a sufficient access, acquires any right over the remainder of the ground which is not conferred upon him in terms by his title.

On the whole matter therefore the conclusions at which I have arrived are that the defenders have no written title to the servitude in question, either by way of grant in the titles of dominant tenements or by way of burden imposed by the titles of a servient tenement, that, although they have possessed an access by the lane for a considerable time, they have not enjoyed it long enough to acquire a right of servitude by prescription; and lastly, that the facts are not sufficient to support the hypothesis of an implied grant.

Lord M'Laren.—I agree with all that has been said by Lord Kinnear regarding the ground of judgment disclosed in the Lord Ordinary's note. I see no reason for the conclusion to which he came, that a right to the use of this lane could be derived from a supposed mutual contract by the feuars in their capacity as members of the association.

I have more difficulty on the question of implied grant, for I confess I think that is a very reasonable and equitable principle of our law. It has been liberally admitted in England, and I should have every disposition to give it a liberal application to grants of land in this country. But, in the first place, I am perfectly satisfied, for the reasons given by Lord Kinnear, that, apart from that principle, there could be no right to the turning-place, because the turning-place is in the title of the feu first given off, and, in order that there should be a right to it, it would be necessary to hold that a right to the granter had been reserved. Now, I think, not only upon the authorities reviewed by Lord Justice Thesiger in the case cited, but in view of the reasoning in that very strong judgment, that it must be admitted that there is no corresponding right by implied reservation in the case of a division of land, but if a granter desires to reserve any servitude to himself, he must do so by express words in the title-deed. I think the non-existence of a right over the turning-place makes a serious breach in the argument in favour of an implied grant, which almost necessarily supposes a right to the lane as a whole.

The chief difficulty in my mind to admitting such a right is this, that the superior of the various feuars is careful to express all those rights which it is intended should be enjoyed by the feuars as a whole. There is a statement of conditions, and a clause binding the superior to insert like conditions in the other feus, which is the proper mode of constituting stipulations for the common interest of the feuars. In the absence of any reference to the lane in this statement of conditions and burdens, there is a strong suggestion that no right was intended to be given. Then again each feuar gets his conveyance of a part of the lane without any burden being put upon him to communicate the benefit to the rest, and that in a manner notifies to him that there is no servitude upon other people's property any more than upon his own.

While I cannot say that I have a clear opinion on this point, I am not disposed to say anything contrary to the views expressed by Lord Kinnear.

Lord Adam and the Lord President concurred.