Scottish Court of Session Decisions

“He does not think that if the pursuer's author did originally acquire such a right, it can he held to have fallen on the ground that he and the author of the defenders Dixon's trustees were taken hound, ‘within three years,’ each to make their half of the street. There appears to him to be no ground for holding that this was meant to be a limitation of the obligation, so that the pursuer could not be called upon to fulfil it after the lapse of three years.

“But the question remains, whether the superiors, the Trades' House, having imposed the proper counterpart of the pursuer's obligation upon the feuar of the opposite ground, the superiors can now be decerned against as debtors in the obligation. The Lord Ordinary thinks that is not their position. Any jus crediti in the pursuer's author was only acquired by implication from the nature of the transaction; and the implied obligation of the superiors must, it is thought, be held to have been of such a kind that it was fulfilled by their taking the opposite feuar bound to make his half of the street, that being a liability imposed for the mutual benefit of the feuars, and prestable by them. Accordingly, the decree now pronounced in terms of the first declaratory conclusion is, in so far as regards the Trades' House, merely a decerniture against them for any interest they may have in the matter, the Lord Ordinary being of opinion that they cannot be called upon to do anything towards making or opening up the street. The late Mr Dixon obtained a reconstitution of the feu now held by his trustees, without any obligation to make the street. But it was conceived in such terms that admittedly it does not affect the present question.

“Another question between the parties in reference to the first declaratory conclusion is, whether the pursuer is entitled to have the street opened up as a public street. In the titles to both feus, the pursuer's and that of Dixon's trustees, the streets by which they are bounded are spoken of as public streets. The Lord Ordinary is of opinion that the pursuer is entitled to have the street now in question opened as a public street, in the sense of the feu charters, i.e., in the ordinary legal sense of that expression. It is not hujus loci to inquire what effect that may have with reference to the provisions of the Glasgow Police Act as to the custody and maintenance of streets.

“By the second conclusion the pursuer seeks to have it declared that the superiors and Dixon's trustees are, one or other or both of them, bound to open up and form the street, the expense of forming and causewaying the eastmost half of it being borne by the pursuer. The Lord Ordinary has already said that he does not think any such obligation lies upon the superiors. And as to Dixon's trustees, he does not see his way to give decree against them in terms of this conclusion, as it is framed. They can only be liable to do that which the superiors took them bound to do, viz., to causeway the half of the breadth of the street, and maintain and uphold the causeway in all time thereafter, and to keep in conformity, as to level, to the scale laid down in the plan. The Lord Ordinary is of opinion that the pursuer would have been entitled to decree to that effect against Dixon's trustees if the conclusion had been so framed. But there is no obligation upon them to make the entire street, partly at their own expense and partly at the expense of the pursuer, as concluded for. While the Lord Ordinary thinks that Dixon's trustees must be assoilzied from this conclusion, as it is framed, he thinks that it is only fair to the parties that he should express his opinion upon the point that was discussed at the bar on this part of the case, viz., whether the pursuer is entitled to insist upon Dixon's trustees implementing the obligations as to forming and maintaining the street which are contained in their feu-charter.

“The remaining conclusions are directed against Allan's trustees and Messrs Allan & Mann, to have them prevented occupying the solum of the street forming the western boundary of the pursuer's ground, and also the crossing of the continuation southward of the line of that street, with the continuation westward of the line of the street which forms the pursuer's southern boundary. These defenders hold their property under Dixon's trustees, who are bound to relieve them of any obligation which may be held to exist as to making the street. They did not maintain in argument that they are entitled to occupy any part of the street directly opposite the western side of the pursuer's feu. But they contend that he has no right to object to the ground which would form the crossing of the two streets forming his western and southern boundaries at the south west corner of his feu, being enclosed and occupied by them. The Lord Ordinary is of opinion that this is much too strict a reading of the description of the subjects and the provision as to streets in the feu-charters. If applied to all the four corners of the pursuer's feu, it would make these provisions practically useless. He thinks it is excluded by a fair interpretation of the deeds on which the reference to streets in the description of the subject, and in the obligation on the feuar in regard to them, must be held to imply that there is ish and entry by them to and from the subject feued. The provision for having the streets formed on one level aids this interpretation. The Lord Ordinary also thinks that on this matter reference may legitimately be made to the plan, as showing the nature of the streets in this respect.”

Dixon's Trustees and Allan's Trustees reclaimed.

Gordon, Q.C., and A. Moncrieff for Dixon's Trustees.

Fraser and Maclean for Allan's Trustees.

Clark and Lee for Trades' House.

Watson and Lamond for pursuer.