Scottish Court of Session Decisions

The questions raised by this note of suspension and interdict are fully stated by the Lord Ordinary ( Mackenzie) in a Note to his interlocutor granting the interdict:—“By the marriage-contract between the deceased Mr William Tod of Ayton, in Perthshire, and his wife Mrs Isabella Benny, Mr Tod conveyed to her ‘absolutely the whole household furniture, bed and table linen, silver plate, books, pictures, prints, and other plenishing and effects, including heirship moveables, carriage and carriage-horses, and other effects, now belonging to, or that may hereafter be acquired by him, in so far as the same may form part of, or be situated or used at, in, or in any way connected with his ordinary or principal residence or establishment.’

Mr Tod acquired the estate of Ayton in 1860, and he afterwards erected thereon, 1st, a large conservatory or greenhouse, two forcing-houses, and a vinery, with the necessary hot-water heating apparatus and other fittings; 2d, extensive iron fences in the policy grounds attached to Ayton House; and, 3d, an observatory containing a large and expensive telescope. Mr Tod died in 1867, survived by his said wife, and she married the respondent, Mr Finlay, in 1870. In virtue of the before-recited clause in the marriage-contract, Mr Finlay, as in right of his wife, maintains that he is entitled to the property of the foresaid subjects. Having advertised these subjects for sale, Mr Tod's testamentary trustees raised the present note of suspension and interdict, to prevent him from selling or in any way interfering with them.

The question raised is, as regards one of the subjects, attended with difficulty. But having regard to the fact that the whole subjects were erected upon and annexed to his estate by Mr Tod, a fee-simple proprietor, for the more beneficial use, occupation, and enjoyment of that estate, the Lord. Ordinary is of opinion that they are pertinents or accessories of the estate, and as such heritable, and therefore that they do not fall under the conveyance of moveable effects in favour of his wife, contained in her marriage-contract.

1. As regards the large conservatory or greenhouse erected within the garden and against the garden wall, and the two forcing-houses and vinery erected outside the garden, and forming one separate and independent structure;—the Lord Ordinary has no doubt that, as in a question between the present parties, they fall under the legal maxim, Solo inædificatum, solo cedit.

These erections are of the most substantial description. The conservatory or greenhouse has a polished freestone wall, about two feet high; and the other houses have brick walls varying from one foot to five feet in height, resting on stone foundations. On these walls, sides and sloping roofs of the usual construction, with the requisite glass sashes, rest. One furnace, with a close boiler, in a building situated at a short distance from the houses, heats the whole of them by means of hot-water iron pipes conducted under ground to each of them. Such houses are the ordinary pertinents of a mansion-house; and a fee-simple proprietor, erecting them in or adjacent to his garden for the cultivation of flowers, plants, and fruit requiring care and heat, makes and intends these houses to become, the Lord Ordinary thinks, as completely

Page: 257↓

pertinents of his estate as the fruit trees, bushes, and shrubs which he plants in his garden. The three elements of fixture, destination, and convenience for the use of the land, seem to him to be conclusive in favour of the complainer's right to those subjects.

2. The Lord Ordinary is of the same opinion in regard to the iron fences. They are all of a permanent character, and necessary for the beneficial use and occupation of the policy ground surrounding the mansion-house. One set of these iron fences (coloured blue on Mr Heiton's plan) is upwards of 3000 yards in length, and separates the three avenues leading to the mansion-house from the adjoining fields. They are four feet high, with iron standard stays and straining posts, fastened by means of lead to blocks of stone, inserted below the level of the ground. Another of these iron fences (coloured red on the plan) is about 70 yards in length, and separates part of the avenue near the mansion-house from the adjoining field. It is of an ornamental character, and admits of being taken to pieces, as it is constructed in lengths of 6 1 2 feet, which are fastened to each other with bolts and screws, and attached to the ground by double prongs 12 inches long at the end of the standards. A similar fence, but without the ornamental trellis-work of the last fence (coloured red on the plan), encloses the observatory, with the footpath leading to it and its small shrubbery, from the adjoining field. It is about 165 yards long. Some of its standards are fastened to blocks of wood, and others to blocks of stone, by means of lead. There is also another description of iron fence about 150 yards long (coloured yellow on plan) enclosing part of the policies in the immediate vicinity of the mansion-house. This is a very substantial fence, which is fastened to the ground by double prongs at the end of the iron standards, and by the sole plates of the cast-iron corner posts being secured by spikes to wooden platforms.

The whole of these fences appear to the Lord Ordinary to be of a permanent character, and to have been erected, and to be necessary, for the beneficial use and occupation of the policies surrounding the mansion-house. If any portion of them were removed, another fence would require to be erected in its place. No doubt they could be taken down and put up elsewhere. But that may be said of an ordinary wire fence with wooden standards and straining posts driven into the ground, or of an ordinary wooden paling, or of a dry stone dyke built on the surface of the ground, or of a gate in a fence, and of many other articles which are undoubtedly heritable.

3. The question with regard to the large telescope in the observatory is attended with difficulty. After repeated consideration, the Lord Ordinary is of opinion that it forms no part of the moveable effects of Mr Tod, but that it forms part of his estate of Ayton. The building of the observatory is undoubtedly pars tenementi. But the mere building does not of itself constitute an observatory. The large telescope is the most essential and expensive part of the erection. Its size required that it should be securely placed on the ground by means of a large and solid foundation of masonry, and of an iron base and base plate in one piece, of great size and weight, part of which is below the floor, and of a heavy iron pedestal, strongly bolted to the base, the whole being of the most permanent and substantial character.

Mr Tod erected the building, base plate, base pedestal, and telescope, as a whole, for permanent use as a pertinent of his estate. The building and its contents together constitute an observatory. The telescope and pedestal could not be removed without injury to the building, except by being taken separate. Mr Heiton reports that the base plate ‘could not be removed without destroying some parts of the building,’ and that ‘the observatory could not without very great alterations be applied to any other purpose.’ The telescope was necessary and intended to adapt and complete the building for the purpose for which it was erected, and it was annexed to the soil, and destined to that purpose. It is therefore, the Lord Ordinary thinks, in a question with Mr Tod's widow, real and not personal estate.

The Lord Ordinary has called the attention of the parties to the case, with reference to the large telescope in Short's Observatory on the Calton Hill, referred to by Professor Bell (Com. I. 753, note 2), but not reported, which was held subject to poinding. But Short can only have been tenant, under the Town Council, of the ground on the Calton Hill on which he erected his observatory, as a place of public amusement, for the purposes of profit; and if so, the telescope was truly one of the tools of his trade, and remained his property, and it did not pass to the proprietors of the soil, and was therefore moveable. That case does not, it is thought, rule the present.

The Lord Ordinary is quite aware that the clause in the marriage-contract must receive a liberal construction; but the claim of the respondent is founded upon the general conveyance in the marriage-contract of the effects situated or used at, in, or in any way connected with Mr Tod's principal residence or establishment. These vague and general terms must, it is thought, receive, at all events to some extent, their construction from the preceding words in the clause,—household furniture, bed and table linen, silver plate, books, pictures, prints, and other plenishing, including heirship moveables, carriages and carriage horses—and if so, it is difficult to hold that Mr Tod's widow could, under such a conveyance of moveable effects, acquire right to the observatory, forcing-houses, vinery, fences, and large telescope in the observatory, constructed, fixed, and destined as they were by Mr Tod, who, during the marriage, was entitled to lay out his funds and manage his estate as he thought proper.”

The respondents reclaimed.

John M'Laren for them.

Gloag for the respondents.

At advising—