Scottish Court of Session Decisions

Miss Margaret Bruce of Easter Castletown, Perthshire, was a co-terminous proprietor with James Gibb of Wester Castletown. In 1833 they entered into a mutual written agreement, for the purpose of adjusting all differences between them as to boundaries and otherwise. That agreement contained the following provision. Miss Bruce “gave up to, and in favour of the said James Gibb and his heirs and successors, all right, title, and interest, claim of right, property, and possession, and every other claim competent to her upon the lands of Wester Castletown, from the fence leading from the Holeburn to the foot of the hill, but reserving or excepting therefrom a right or servitude of the road to the west in favour of the said Miss Bruce, her heirs and successors, for the benefit of the house of Easter Castletown, but specially excluding the same from farming purposes.”

In 1835, Miss Bruce was building an addition to the offices belonging to her house of Easter Castletown, and the men employed to drive stones for this work drove the carts along the servitude road. James Gibb and his servants stopped the carts, alleging that the purpose for which they were employed was not “for the benefit of the house of Easter Castletown,” according to the true interpretation of the written agreement.

Miss Bruce presented a petition to the Sheriff of Perthshire, stating, that the addition to the offices was wholly for the benefit of the house of Easter Castletown, and was in no way connected with any purposes of farming; that she required the use of the road for driving stones for the work; and praying the Sheriff “to find that James Gibb is not entitled to prevent the petitioner driving carts, or other carriages, along the said road, for the purposes above specified, or for any other purposes for the benefit of the house of Easter Castletown, except for farming purposes; and, in the mean time, to prohibit and interdict the said James Gibb from interfering, or preventing the petitioner's carts, or other car riages, from passing along the said road; and, on advising the case, to declare the interim interdict perpetual,”

James Gibb, in his answers, pleaded, that the conclusions of the petition were of a declaratory nature, for ascertaining generally the extent of the petitioner's right, and that such conclusions were competent only in the Supreme Court. On the merits, he maintained, that the servitude use of the road “for the benefit of the house of Easter Castletown” applied chiefly, or solely, to such purposes as the transport of furniture, or fuel, &c., to the house itself; that a servitude was stricti juris, and should be construed favourably for the servient tenement; and that the erection of offices, or additions to offices, did not fall within its fair scope.

A proof was allowed, from which it appeared that there was a set of offices near the manor-house of Miss Bruce, quite distinct from the farm offices, which were at a considerable distance; that it was for an addition to the former set of offices that the carts of stones were required; and that the addition was meant to be used as a laundry.

The Sheriff found “that this action is one of interdict, to regulate the possession of parties under a written deed of agreement,” and therefore repelled the plea of incompetency stated against his jurisdiction; and farther, “on the merits, found that the action is founded on said deed of agreement, and must be decided on its terms, and not according to the previous possession of parties;” and after reciting the agreement, the Sheriff farther “found it proved, that James Gibb interrupted the pursuer's servants whilst driving certain carts on the said road, which carts contained stones intended for enlarging the office-houses of Easter Castletown; that the said carts were then used for a purpose falling under the object of the reserved right, and not within the exception; therefore granted the interdict craved for the purposes specified; and found Miss Bruce entitled to expenses.” In a note to the interlocutor, the Sheriff observed—“Although the petition concludes in somewhat too vague terms for a finding that the respondent is not entitled to prevent the petitioner from driving carts or carriages along the said road for the purposes above specified, or for any other purposes, &c., it will be observed, that, in the interlocutor appealed from, the application has been dealt with as an application exclusively for interdict, and that the decerniture has been limited accordingly.”

Gibb brought an advocation, in which the Lord Ordinary “found it established by the evidence that the respondent had a right, by the agreement of the 2d of November, 1831, to the servitude road in question over part of the advocator's estate, ‘for the benefit of the house of Easter Castletown, but specially excluding the same for farming purposes;’ that when in the lawful exercise of this right, by driving carts with stones for repairing or building stables in immediate connexion with the said house, the respondent's servants were stopped or interrupted by the advocator that, on these facts, the respondent was entitled in law to the protection of the Sheriff by an interdict; therefore, repelled the reasons of advocation, and remitted simpliciter to the Sheriff; and found the advocator liable in expenses.”

Gibb reclaimed, and, inter alia, pleaded, that there had been no previous possession of the servitude road for the purpose of carting stones, and that the Sheriff's jurisdiction was incompetent.