Mutual Duties betwixt the Proprietors of the servient and dominant Tenements.
Walter Stirling, Doctor of Medicine, v. John Finlayson, Commissary of Dumblane
Date: 11 June 1752 Case No. No. 29.
Servitude of stillicide.
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Dr. Stirling is proprietor of a tenement on the north side of the high street of Stirling; and Commissary Finlayson is proprietor of a tenement adjoining to the gavel of the Doctor's tenement.
In I671, the Doctor's tenement was repaired, and the fore-wall brought eight feet forward towards the street; and that addition to the tenement was finished in the manner of a tympany or storm-gavel. At this time, there was lying to the fore-wall of the Commissary's tenement, a fore-shot, which came eight inches farther forward than the new front of the Doctor's tenement; and the drop fell from the roof of the Doctor's storm-gavel upon this fore-shot.
Commissary Finlayson's tenement being in disrepair, he took it down, and rebuilt it on the foundation of his old tenement and fore-shot, and raised this new tenement some feet above the Doctor's; so that the falling of the drop was interrupted. Upon this the Doctor applied to the sheriff of Stirling, setting forth, that he and his authors had acquired a servitude or jus stillicidii recipiendi, over the Commissary's tenement, by their drop falling thereon beyond the years of prescription; and craving, that the falling of his drop might not be interrupted. The sheriff allowed a proof of the possession of the drop; which being clearly proved for upwards of sixty years, the sheriff found, that the Doctor had acquired a right of servitude over the Commissary's tenement; and ordained the drop to be carried off in a lead spout, to be fixed on the Commissary's wall; and ordained the spout to be fixed and maintained at the Commissary's expense.
At the same time, the Commissary having declined the jurisdiction of the sheriff, he applied to the magistrates, craving that an inquest might be appointed for cognoscing the matter. Accordingly, an inquest was appointed; who, without determining the right of servitude, ordained the spout for carrying off the drop to be fixed betwixt the two tenements, at the joint expense of both parties, of the form and dimensions described in the verdict.
These sentences came before the Lords by mutual suspensions; and the Commissary admitted, that the drop had fallen from the roof of the Doctor's tenement upon the Commissary's fore-shot past memory; and also admitted, that with respect to houses without the limits of a burgh, the servitude, or jus stillicidii recipiendi, would have been thereby constituted; but contended, that, within burgh, there were not termini habiles for acquiring such servitude by prescription, because buildings within burghs are regulated by the particular constitutions and policy of the burgh; and if a house be built according to these rules, the proprietors of the neighbouring tenements cannot complain of any disadvantage thence arising to their property. And as the building of a house with a storm-gavel is a lawful manner of building, the Commissary and his authors could not complain, though the drop was made thereby to fall on their tenement; and, consequently, a servitude could not be acquired by a possession which they could not otherwise interrupt, than by raising their tenement, which they were not obliged to do till they thought proper.
Answered for the Doctor, That the servitude stillcidii recipiendi is one of the positive servitudes, consisting in patiendo, to wit, in suffering the falling of a drop from the roof of the dominant tenement upon the servient tenement; and if it so fall during the years of prescription, without interruption, a servitude must be thereby constituted. The distinction of houses without and those within the limits of a burgh, is without foundation; no such distinction being made either in the civil or our municipal law; neither is there any foundation for it from the constitution and policy of burghs; for it cannot be admitted, that, by the constitution of any burgh, it is lawful for the proprietor of one tenement to throw his drop upon the area or tenement belonging to another, unless he has a right of servitude for that purpose: On the contrary, it is regulated by the policy of all burghs of Scotland, that every proprietor who builds a tenement shall leave a certain space of his own property free, for receiving the easing-drop. It is true, that, betwixt tenements which face the high-street, as those in question do, there is ordinarily no space left; but it will not from thence follow, that the proprietor of one of these tenements can, without a right of servitude, throw his drop upon the adjacent tenement; for as these houses are generally built with erect gavels, the drop of each tenement naturally falls over the fore and back walls thereof. It is, however, no doubt lawful, and often practised, to raise the fore-walls into tympanies or storm-gavels; but it is not lawful, without a right of servitude, to finish these tympanies so as to make the drop fall upon the adjacent tenement; and therefore they are ordinarily built so as not to reach so far as the principal gavel of the house, and thereby the drop still falls over the fore-walls of the house upon the street, or upon the proprietor's own area. And if one should build his storm-gavel so as to throw the drop upon his neighbour's property, his neighbour, no doubt, would have right to stop him; but if the drop continues to fall during the years of prescription, a servitude is thereby constituted.
The Lords were of opinion, That there was no servitude acquired in this case; but did not expressly determine that point. Only, as a consequence thereof,
“They found, That the drop ought to be carried off by a lead spout, to be fixed betwixt the tenements; and ordained the spout to be fixed and maintained at the joint expenses of the proprietors of the two tenements; but varied the form and dimensions which had been appointed by the verdict.”
