Scottish Court of Session Decisions

On 18th January the Glasgow Jute Company presented a petition in the Dean of Guild Court for warrant and decree of lining. To this petition Mr Carrick, Master of Works in Glasgow, offered no opposition; and on 21st January they got the decree prayed for. On 2d February Mr Ure, a conterminous feuar, lodged a petition, asserting his interest, craving to be sisted in the process and praying for recall of the interlocutor of 21st January. In his petition he questioned the statement made by the Company of their boundaries. They had asked leave to erect for temporary purposes a one-storey brick building on ground which, they alleged, belonged to them, and was surrounded on all sides by their buildings. Mr Ure, however, challenged production of their titles, alleging that he and they were feuars of the same superior ; that the ground they proposed to occupy was part of a street which it was stipulated in the feu-contract of every feuar was to be formed there; and that the street had in reality been left open—though not causewayed and paved—lined with gas-lamps, and used for two years. He also said that their predecessors, Messrs W. & J. Fleming, who obtained the feu in 1863, had that same year made the same claim as the company now made, and been refused.

Mr Ure was sisted as a respondent in the process along with Mr Carrick. The Company replied, that the building had been erected; that it occupied the site which previously had been occupied by a large reservoir: that Mr Ure was not a conterminous proprietor; and that though the common superior, Mr Hozier, had stipulated for the formation of a street to be called Graham Street, which was to stretch between the feus along to Baltic Street, he had agreed in the feu-contract of the Flemings not to carry Graham Street nearly the whole length at first stipulated.

On 31st March the Dean of Guild recalled the interlocutor complained of and refused the petition for lining. The Company appealed; and on 26th October the papers were boxed to the First Division.

Solicitor-General and Maclean, for the appellants, argued—The respondent has no interest to go along the street further than the access to his own property. Graham Street never was a thoroughfare, and never could be, till Baltic Street was formed; and Baltic street was only formed in 1863. Mr Hozier is the only one entitled to insist on the opening of this street; and even he can't enforce it. Causewaying and paving is the test of the real formation of the street. Authorities— Carson, &c. v. Miller, 13th March 1863 ; Trustees of Free St Marks v. Taylor's Trustees, 26th January 1869.

Ckichton (who was not called on) and Deas for the respondent, replied—Each of the feuars has a jus qucesitum to enforce the conditions of the feus against the others. The stipulation is in the titles of both parties. The superior, having given each feuar this right, was not entitled to withdraw it without the consent of them all. The question is not merely one of servitude, but one of common interest. Authority— Mackenzie v. Carrick, 26th January 1869.

At advising—

Lord President—I think the Dean of Guild has done rightly in refusing this authority to build. The ground in question is one that formerly belonged to a Mr Hozier, and has been gradually feued out to various feuars. His intention was to have a street called Baltic Street and one called Graham Street, running at right angles to it from the Dalmarnock road; and most of the feus had been occupied before the appellants acquired their feu. The question is, whether there is in the titles of the feuars a sufficient obligation to compel the making of this street? I think there is. The first title we have of the appellants describes their feu as bounded by the middle of Graham Street on one side, and by Mr Ure's feu on another; and it conveys the feu under the reservations, conditions, &c., contained in the several feu-contracts of the ground in the neighbourhood.

Now, I cannot entertain the slightest doubt that when such obligations are inserted in the titles of the feuars each feuar is entitled to enforce what is in his neighbour's titles, and that they are thenceforth to have a common interest. It is the way in which such obligations amongst feuars are most commonly formed. This is well illustrated in the recent case of Mackenzie against Carrick, also a Glasgow case.

In that case it was held an encroachment on the common interest of the feuars for one of them to build a bridge across the street to his buildings on the other side. But there is in the feu-contract of Mr Ure a declaration in these terms:—“Declaring that the said Robert Ure and his foresaids shall be obliged to leave open and free of building or other obstruction sufficient space for the completion of the foresaid streets, and he and his foresaids and the ground hereby feued shall be liable for and burdened with the expense of causewaying and paving the one-half of the foresaid streets, so far as bounding the piece of ground hereby feued, and of maintaining the same in sufficient repair in all time coming, and which streets shall be so causewayed, paved, and formed whenever required by the said James Hozier, or his heirs and successors, and shall be mean and common to them and their feuars and tenants, and to the said Robert Ure and his foresaids, but which streets shall not be laid open till, nor carried farther through the said James Hozier's lands than, he thinks proper.”

But I think this a reservation personal to the superior, and that cannot be transmitted by him. Also the formation of these streets depends upon the extent of the feuing. If ground remain in use for agricultural purposes, it is the superior's interest not to open up the street further than the feuars need. But when it is feued, it is his interest to have the street formed as early as possible. But none of the feuars can found upon this reserved power of the superior.

There was in the feu-contract of 1863 with the Flemings a declaration on Mr Hozier's part of his willingness to abandon his right to have this street formed. The extract says—“Declaring that the said James Hozier hereby consents, in so far as he is concerned as superior, that the street of 40 feet wide, called Graham Street, which was intended to be continued to Baltic Street, shall be abandoned and given up to the extent of that part of it which is bounded on both sides thereof by the properties presently belonging to the said W. & J. Fleming & Company, being from the north-western corner of the ground some time ago fened by the said James Hozier to Angus Buchanan, metal-refiner in Bridgeton, and now belonging to the

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.said second parties, and to the effect that, as in right of the said first party, in so far as the keeping closed or opening up of the said street is concerned, the said second parties may either keep the same closed or opened up to the extent foresaid at their own convenience; but it is hereby provided that the said James Hozier, by thus giving his consent to discontinue and abandon the said street to the extent and effect above mentioned, shall not be involved in any dispute or incur any responsibility by his doing so, and of all questions relating to which the said second parties hereby agree to relieve the said James Hozier and his foresaids.”

The latter part is an attempt to transfer to one of the feuars a right reserved to the superior. It may be incorrect to call that right personal to the superior or intransmissible; but I think it was one that accompanied the right of superiority, and could not be separated from it. All this agreement is valid for is, that the other parties to the contract could enforce it against Mr Hozier.

This is not even as if it had occurred at the beginning of the feuing, or at the giving out of the last of the feus when he might have attempted to give the power of building up the street to the feuars. I don't say he could do it. But had he given it to the appellants it would have been a transference of the dominium utile of that part of the street to them. And the dominium utile had gone from him in the deed of 1863. I therefore think this appeal must be refused.