Scottish Court of Session Decisions

The question is whether there is a mutual contract between these two feuars or disponees, the trustees of Free St Mark's Church on the one hand, and Taylor's trustees on the other, to leave a street 40 feet wide between their two properties.

To constitute such an obligation where the right of property on either side goes to the central line of the proposed street, there must be an express stipulation in the titles. That appears to be the law on the matter, clearly laid down in a long series of decisions. There might have been some doubt as to the law at one time, but the case of Young, quoted by the advocator, was an exceptional decision pronounced before the law was settled, and the case of Gordon v. New Club, decided by Lord Eldon in the House of Lords in 1828, laid down a very general and a very clear rule which has ever since been followed, and it is by that rule that we must be guided in the present case.

In 1851 Kidson's trustees entered into a contract of ground-annual with the trustees of St Mark's Church, conveying to them a plot of ground on the south of Main Street, described as containing 1063 square yards or imperial measure, delinated in a plan endorsed and signed at the same time. The boundaries are described as being on the north by the south side of Main Street, along which it extends from A to B on said plan 128 feet 4 inches or thereby; on the east, by the central line of a proposed street, to measure 40 feet in breadth, along which it extends from B to C 97 feet or thereby. There is no doubt that in the plan there is a line laid down called the centre line of the proposed street, corresponding to this line in the contract, but there is nothing more in the contract on this subject. There is no obligation on the disponees that they shall not build up to the extreme verge of their property, and no obligation on the disponers that they will take the feuars of the remaining portion of the property bound to leave a part of their property unbuilt on. That is the defect in this case throughout in the way of constituting a mutual obligation of this kind. When the superiors feu out a part of their property without taking the feuar bound to leave a space unbuilt on, in order to form a street, and do not themselves come under any obligation, there is an entire want of foundation for this mutual obligation. And what followed was exactly in accordance with this view, for when Kidston's trustees afterwards come to give out the other parts of their property adjoining St Mark's Church to the east, they give it—I refer to the disposition of the property—“as that plot of ground which is bounded on the north-north-east, partly by the south-west side of Main Street, along which it extends 205 feet 6 inches or thereby, and partly by the central line of an intended street of 40 feet wide, to he called Street, along which it extends 45 feet 8 inches or thereby; on the northwest, by the central line of another intended street of 40 feet wide, to be called Street, along which it extends 184 feet 6 inches or thereby.” That is the same intended street referred to in the original disposition to the St Mark's Church trustees, and here, as in the former case, they give their disponees, Taylor's trustees, the property to the centre, and impose no obligation to leave their part unbuilt on in all time coming, nor do they take any obligations on themselves.

But it is said that there is here a description of this boundary as being the centre line of the proposed street, with reference to the plan in which it is laid down, and that there is an implied servitude created which amounts to a mutual contract that they shall respectively forbear from building on their properties, so as to leave this part for a street. That is the most extraordinary inference from titles so expressed; and, apart from authority, it would be impossible, in any view of the law, to draw such an inference. I am therefore of opinion that the Sheriff has come to a right conclusion.

Lord Deas—I am of the same opinion. There is a property belonging to the trustees of St Mark's Church on the one side, and a property belonging to Taylor's trustees on the other, and the question is, whether there is an obligation on both of these parties to leave a space of 40 feet for a street between the remainder of their properties? Now the property conveyed to St Mark's Church trustees is described as consisting of a certain measurement, and on the side in dispute as bounded by the centre line of this proposed street? The property conveyed to Taylor's trustees is similarly described. These titles certainly show that it was contemplated and intended that a street should be formed between the properties, though it is very material to observe that the property of the solum up to the centre is conveyed to the parties respectively in absolute property. There is no question, in point of law, that every man is entitled to make whatever use of his property he chooses, unless there is a clear restriction, constituted kahili modo, against his doing so, which some one else has a clear title to enforce. Two things are necessary in this case; one is, that an obligation should be imposed in clear terms on each of the parties to leave this space free for the street; and the other is, that there should be given to each a clear right and title to enforce that obligation, the one against the other. If either of these conditions is wanting, then—no matter what the intention of parties may have been—there was no obligation in law that could be enforced by the one party against the other. Now, look at the contract of ground-annual between Kidston and St Mark's Church trustees, and at the disposition to Taylor's trustees—we find no obligation in either deed. There is, no doubt, mention made in the title of St Mark's Church trustees of a proposed road, and so there is also in the disposition to Taylor's trustees. But the solum is conveyed, one half to the one party, and the other half to the other; and, whatever was proposed, neither party will be bound to do the thing which was proposed in the absence of any obligation on either. I think the Sheriff was quite right in holding that, according to clear law, the disposition must be looked to, not the previous deed which, according to undoubted rule, is superseded by the disposition. Supposing we look at the previous contract, how would the matter stand? There is there an obligation on Taylor's trustees, but we have no obligation on St Mark's Church trustees, or title in them to enforce this contract. There is then an obligation on one party, and none on the other, which would be as objectionable in law as if there was no obligation there at all.

Lord Ardmillan and Lord Kinloch concurred.