Scottish Court of Session Decisions

This was an action raised by Alexander Dennistoun of Golfhill against James Thomson, in order to compel the latter to open up and form certain streets on the lands of Annfield and others. The nature of the case will appear from the Lord Ordinary's interlocutor and note:—

“ Edinburgh, 29th March 1872.—The Lord Ordinary having heard parties' procurators, and having considered the Closed Record in the conjoined actions, the proof adduced, and the whole process— Primo, Finds and declares that the defender, James Thomson, under and in virtue of the writs and title-deeds of his property, mentioned on record, is bound and obliged to open up and leave open, unoccupied, and unenclosed, a street or line of street called Sword Street, running from Duke Street to the street or line of street called or to be called Reid Street or Reidvale Street, and that in so far as the said street or line of street called Sword Street is upon the lands of the said defender, that is, to the extent of twenty-five feet in width, being half the width of the said street, and that in the line and upon the site shown and delineated upon the plan referred to in the Summons, being No. 7 of Process: Secundo, Finds and declares that the defender, under and in virtue of the writs and title-deeds of his property, mentioned on record, is bound and obliged to open up and leave open, unoccupied, and unenclosed, a street or line of street called or to be called Street (the name not being yet fixed), running parallel or nearly parallel with and to the east of Sword Street above mentioned, from Duke Street to the street or line of street called or to be called Reid Street or Reidvale Street, and that in so far as the said street or line of street is upon the lands of the said defender, that is, to the extent of twenty-five feet in width, being half the width of the said street, and that in the line and upon the site shewn upon the said plan, No. 7 of process: Tertio, Finds and declares that the defender, under and in virtue of the writs and title-deeds of his property, mentioned on record, is bound and obliged to open up, form, causeway, and pave upon the lands of the defender, a portion of the street or line of street called or to be called Reid Street or Reidvale Street, said portion being wholly upon the lands of the defender, and to be of the full width of sixty feet, including the foot pavement on each side, and measuring from building line to building line, the said portion of Reid Street or Reidvale Street so to be formed, causewayed, and paved by the defender, lying between the line of Sword Street, above mentioned, and the line of the as yet unnamed street, mentioned in the preceding finding, and that in the line and upon the site shewn upon the said plan, No. 7 of process: And finds and declares that the defender is also bound to make and maintain a common sewer in said Reid Street or Reidvale Street, so far as extending along the subjects belonging to the defender, and conveyed to his author, the late John Thomson, by the disposition, No. 162 of Process: and Quarto, Finds and declares that the defender, under and in virtue of the writs and title-deeds of his property, mentioned on record, is bound and obliged to open up, and leave open, unoccupied, and unenclosed, certain portions of the street or line of street called or to be called Reid Street or Reidvale Street, leading from Bellgrove Street eastward, and that in addition to the portion of street referred to in the third or preceding finding, and that in so far as the said street or line of street to be called Reid Street or Reidvale Street is upon the lands of the said defender, that is, to the extent of thirty feet in width, being half the width of the said street, and that in the line shewn and delineated upon the said plan, No. 7 of process; and to the extent and effect mentioned in the preceding declaratory findings, finds and declares in terms of the declaratory conclusions of the original and of the supplementary Summons: But finds that the defender is not under his titles bound to form or to causeway any portion of the said streets excepting that portion of Reid Street or Reidvale Street mentioned in the third finding above written: Farther, decerns and ordains the defender to open up and leave open, unoccupied, and unenclosed, and also to form, causeway, and pave the various streets or portions of streets mentioned respectively in the preceding findings, and that in terms of the said findings in all respects, and also to make and form the common sewer in manner mentioned in the third finding above written, and ordains him instantly to remove all palings or obstructions of every kind at present existing on any portion of the site of the said streets, and decerns: Finds, in the circumstances, that no damages are due by the defend-to the pursuer prior to the date of the present decree, and finds it unnecessary to pronounce any farther decree in reference to the remaining conclusions of the action: Finds the pursuer entitled to expenses in the original action, in the supplementary action, and in the conjoined actions, but subject to modification, and modifies the same by deducting therefrom one-fourth of the taxed amount, and remits the accounts of said expenses, when lodged, to the Auditor of Court to tax the same and to report.”

“ Note—This is a very important case, both in reference to the interests of the parties to the litigation, and in reference to the rights and obligations which arise when lands are given off to be built upon, and described as bounded by intended or projected streets.

The Lord Ordinary was favoured with an able and instructive argument as to how far building stipulations or feuing-plans are binding upon singular successors, and in what circumstances feuing-plans or conditions of feu, or the formation of streets, are made and constituted real burdens upon property, or binding upon singular successors.

In the view which the Lord Ordinary takes of the present case, however, it is unnecessary to consider the interesting and difficult questions regarding real burdens or obligations laid upon singular successors, for he is of opinion that none of the parties to the present action can be regarded as singular successors, but that the question arises between the pursuer, Mr Dennistoun, and those holding through him, on the one hand, and the defender on the other,

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just as it would have arisen between the Western Bank, from whom Mr Dennistoun, derives right, and Mr John Thomson, the defender's father, who was the original contracting party with the Western Bank. The defender, it is admitted, represents his father, to whom he has succeeded under certain family settlements and arrangements, and the Lord Ordinary holds that the pursuer Mr Dennistoun is, so far as the lands are concerned, under all the obligations which the Western Bank undertook to Mr Thomson; for although Mr Dennistoun is a purchaser from the Western Bank, and in one sense a singular successor to them, yet the conveyance in his favour is expressly granted ‘without prejudice to all obligations upon us or our predecessors contained in conveyances granted by us or them of portions of the said lands of Bellfield and Annfield.’ It is also granted without prejudice to obligations in reference to Sword Street contained in an instument of sasine in favour of John Reid, dated and registered 26th December 1838, and it contains various stipulations intended for the benefit of Thomson as to buildings to be erected by Mr Dennistoun. In reality, therefore, Mr Dennistoun comes exactly in the place of the Western Bank, and is subject to all pleas and exemptions which would have been competent against the Bank. Even if this had not been so, however, still, as the defender represents his father, and as Mr Dennistoun is undoubtedly vested in the whole rights of the Western Bank, it is thought Mr Dennistoun could enforce all the personal obligations which John Thomson undertook to the Bank and their successors. It would not be in the defender's mouth to plead that, although he was well and firmly bound to the Bank, he is not bound to the Bank's disponee, to whom the Bank has made over all its rights.

The Lord Ordinary thinks, therefore, that the present questions are really questions of contract between two contracting parties, and that the case is not embarrassed by the niceties attending the constitution of real burdens. The true question simply is, What was the contract,—what did the parties undertake to do or to abstain from doing in reference to their respective properties?

Even if the question had been with singular successors, however, the Lord Ordinary thinks that to some extent servitudes of road have been validly created, for he is disposed to think that if a street of a particular width is stipulated for, that implies a roadway or a servitude of road of the specified width, and as a road is one of the known servitudes, it may be constituted by grant without entering the records. In point of fact, however, the roads or streets mentioned in the title do enter the records, and are specially mentioned as real burdens in all the infeftments.

Viewing the questions as narrowed, therefore, to pure questions of contract, the Lord Ordinary will shortly explain the grounds upon which he has reached the conclusions expressed in the preceding interlocutor.

The conclusions of the Summons relate to three streets, all of which are at present begun, partially opened, and partially laid out. The three streets are (1) Sword Street, or rather the upper or northern portion of Sword Street extending from Duke Street to the line of Reid Street or Reidvale Street; (2) Reid Street or Reidvale Street, extending from Bellgrove Street on the west, eastward till it enters what is wholly the pursuer's land; and (3) an unnamed street running parallel, or nearly parallel, with Sword Street, and being the next street eastward from Sword Street, and extending from Duke Street to Reidvale Street. This Street is at present only open at its northern end, and there it seems to be called Bellfield Place.

As the defender's position in reference to these three streets, or the portions thereof which bound or intersect his property, is or may be different, it may be convenient to take them separately, and to see what obligations the defender, or rather his father John Thomson, has undertaken in reference to each of them.

(1.) The portion of Sword Street from Duke Street to Reidvale Street.

Previous to 1860 the Western Bank were the proprietors, not only of the solum of Sword Street now in dispute, but of the ground both to the west and to the east thereof. By disposition, dated 3d, 4th, and 5th December 1860, and duly recorded (which is equivalent to infeftment) in 1865, the Bank disponed to John Thomson, the defender's father, various subjects, and, inter alia, the lot of ground lying between the line of Sword Street and the line of the unnamed street. This piece of ground consists of 13,730 5 9 yards and 5 square feet, and it is described as delineated on a plan signed as relative to a previous missive of sale, and again signed as relative to the said disposition of 1860. This signed plan, which seems certainly to be made part of the disposition as between the bank and John Thomson, is No. 109 of process, and it is very material both in reference to the present point and in reference to other branches of the case. It is signed both by the liquidators and by Mr John Thomson as relative to the disposition.

In the disposition this plot of ground, the 13,730 5 9 square yards, is described as bounded the said compartment of ground on the west by the central line of Sword Street, which is to measure 50 feet in breadth from building line to building line, along which it extends 496 feet 6 inches, or thereby; on the north-by-west by the highway from Glasgow by Cumbernauld to Stirling, &c. (Duke Street), along which it extends 207 feet 6 inches, or thereby; on the east by the central line of a proposed street which is to measure 50 feet in breadth from building line to building line, along which it extends 536 feet 3 inches or thereby; and on the south by the central line of a proposed street to be called Reid Street, which is to measure 60 feet in breadth from building line to building line, along which it extends 279 feet 3 inches or thereby, as the said compartment of ground before described and disponed is delineated upon, and comprises the lots numbered 51 to 62, both inclusive, of the feuing plan of the lands of Annfield and Bellfield prepared by the said Thomas Kyle.’ The deed contains various declarations intended to regulate the the character of the buildings intended to be erected along the line of the said streets, and then the deed concludes with a very express declaration that ‘these presents are granted, and the subjects above described in the first (the 13,730 5 9 square yds.), second, third, and fourth places are hereby conveyed, always with and under the declaration that … the said John Thomson and his foresaids shall have the full right and privilege of the several streets before mentioned, bounding the several subjects hereinbefore disponed, and which several streets of the width and extents foresaid shall be left open and unbuilt upon, and be public for the use and behoof

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of us and our said disponee respectively, and all others having right thereto in all time coming, which said declarations, restrictions, and obligations hereinbefore written, so far as affecting the several subjects and others hereinbefore conveyed, are hereby created real liens and burdens upon the same.’ These are the leading clauses, but the whole deed is worthy of careful perusal.

Now the question is, What are Mr Thomson's rights and duties in reference to Sword Street? The Lord Ordinary is of opinion that John Thomson, on the one hand, and the Western Bank, on the other, were bound to leave it open, unoccupied, and unenclosed, each to the extent of one-half.

This is implied in the very description of the subject sold. The subject sold is bounded by a street of a given width, one-half of which is on the property of the disponer, and the other half on the property of the disponee. Does not this mean that each party is to leave one-half of the street open and unbuilt upon? Could either party, after giving and receiving a disposition in these terms, have, in spite of the other party, proceeded to build up to the centre line of the street, thus destroying it altogether? Plainly both parties had an interest that the street or line of street should be there—Mr Thomson for the sake of the property he had bought, and the Bank for the sake of the property they retained. It was a mutual contract that there should be a street or streetway there, and both parties were bound to it. Only of mutual consent could either party be released.

The Lord Ordinary even thinks that such a boundary by street or road entering the records would be good against singular successors. It is really a valid constitution of a servitude, or mutual servitude, each party giving and taking a right over half the roadway. Suppose a proprietor of an estate should give off a feu bounded by a road to be made so and so upon his lands: It is thought that this would be enough to create in favour of the feuar a servitude of road, and even the granter's singular successor, and far more the granter himself, would be bound to allow the feuar to use the road. The principle is the same when the road is made mutual between two adjoining lots.

But the case does not rest on the mere description of boundaries, for the express declaration at the end of the deed is not only binding on granter and grantee, but constitutes the use of the streets or roads of the entire width specified a ‘real lien and burden upon the subjects’ The lien and burden is that the whole streets before mentioned, bounding the several subjects hereinbefore disponed—and Sword Street is undoubtedly one of these streets—‘shall be left open and unbuilt upon, and be public for the use and behoof of’ the Bank and John Thomson, and their respective successors. The Lord Ordinary thinks it is impossible to deny effect to stipulations so carefully framed and so anxiously fenced. In the Lord Ordinary's opinion they are validly made real burdens, and would bind even singular successors.

It is unnecessary to look to the other and earlier deeds, the earlier sasines, and the original feuing-plan, which was completely proved in the course of the proof. They strongly confirm the view now taken, but as the Lord Ordinary reads an express obligation in the deed of 1860, it is needless to go farther.

The Lord Ordinary has accordingly declared the defender's obligation to open up his half of Sword Street. But the pursuer goes farther, and declares that the defender shall be bound not only to open and leave open, but also to form his half of Sword Street; that is, it is presumed, to causeway or pave in some way his half of the street. The Lord Ordinary, however, cannot find in the titles any obligation to do more than merely open up. In this respect there is a contrast between Sword Street and a portion of Reid Street or Reidvale Street, to be afterwards noticed. The Lord Ordinary thinks it clear that it was not intended that either the Bank or Thomson should themselves causeway the general lines of streets. That was left for after arrangement; and the usual practice is to lay upon builders, when buildings come to be made, the duty of forming and causewaying half the street opposite their respective erections. This accordingly has been done in a great many instances along various of the plots embraced in the plans in process, for buildings are now fast going up.

As to Sword Street, therefore, the pursuers have only been half successful. The defender must leave it open, but he is not bound to form or causeway. In point of fact, the Lord Ordinary understands that Sword Street is already open, and had there not been other streets, the present action would have been needless; but the defender resisted the declarator and insisted in his right, if he chose, to enclose his half of Sword Street with a paling, as he has done in Reid Street and the unnamed street.

(2) The unnamed street east from Sword Street and running parallel therewith.

This street is just on the other side of the same lot of ground of 13,730 5/9 yards conveyed to the defender's father by the disposition of 1860.

It stands in precisely the same situation as Sword Street, and precisely the same arguments apply to it. The pursuer, as coming in place of the Bank, is proprietor of the ground to the east of this unnamed street, and as such, he has both right and interest to insist that the unnamed street shall be opened up; for, until this is done he cannot feu or give off his ground for building. In like manner, the defender has also a right and interest in opening the street, for it forms the west access to his lot of 13,730 5/9 square yards. In short, as before, the obligation to open up is mutual. This unnamed street is one of the streets the opening up and mutual use of which is declared by the infeftment a ‘real lien and burden on the subjects’

Here again, however, the pursuer is only half successful; for, while the defender is bound to open up and leave open, the Lord Ordinary does not think he can be compelled to form or causeway. His view as to this is already explained.

(3) The portion of Reidvale Street interjected between the line of Sword Street and the unnamed street.

This piece of street stands in a different position from the others. It is wholly upon the ground of the defender, and the title-deeds contain special stipulations in regard to it.

It appears that the projected line of Reid or Reidvale Street required for its formation, at the portion in question, a small triangle of ground wholly belonging to the Bank, a similar triangle of ground belonging to John Thomson, and a stripe of ground belonging to the Bank. Having in view their mutual rights and interests, all parties entered

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into a minute of agreement, dated in April 1860, whereby the Bank, on the one hand, and Thomson on the other, agreed conditionally to contribute their respective triangles of ground for the formation of Reid Street. The condition was in the event of the Bank selling out their lands agreeably to Kyle's feuing-plan. Nine months afterwards the Bank did sell out its lands to Thomson himself, agreeably to Kyle's feuing-plan. This is clear upon the proof, and upon the comparison of Kyle's original feuing-plan with the partial plan signed relative to the agreement and disposition. Thereupon the agreement of April 1860 was carried out and embodied in the disposition of December 1860, and the deed contains special obligations in reference to the bit of Reid Street now under consideration.

By the deed of December 1860, then, the Bank's triangle, as well as various other bits of ground, are conveyed out-and-out to John Thomson. It is the second subject conveyed, containing 403 8 9 square yards, and then follows the special declaration and obligation, ‘Declaring always, as it is hereby specially provided and declared, that the said proposed street, to be called Reid Street, shall be formed along the subjects belonging to the said John Thomson, as shewn upon the foresaid plan or sketch signed as relative hereto, and the same shall be to that extent of the breadth of 60 feet, including the foot-pavement on each side; that the north half of the said street to the extent foresaid shall be formed from the compartment of ground above conveyed, in the first place, while the south half thereof shall be formed of the triangular piece of ground above conveyed in the second place, and of a triangular portion of the foresaid lands belonging to the said John Thomson: And declaring farther, that the said John Thomson and his foresaids shall be bound and obliged at their own expense, to form and causeway the said street, and to pave the same, and also to form, make, and maintain a common sewer in said street, so far as extending along the subjects before conveyed.’

Now the Lord Ordinary does not see any grounds on which the late John Thomson, or the defender as representing him, can decline fulfilling this express obligation. It is quite explicit. The deed and the signed plan make it quite unambiguous, and the whole expense is carefully laid upon Mr Thomson. The Bank had a most vital interest in making and in enforcing such an obligation, for they retained as their own property the four large and important building lots or blocks of streets lying to the west of the portion of Reid Street now in question. This whole ground, extending to upwards of six acres, now belongs to the pursuer, and if this bit of Reid Street is not to be formed, he will be entirely cut from Reid Street altogether, and have no access to the Gallowgate except round by Duke Street. Both right and interest, therefore, are clear and paramount, and the Lord Ordinary thinks that the defender is bound to specific implement.

It was just to secure the peculiar interest which the Bank retained, and which now belongs to the pursuer, that this portion of Reid Street is made different from all the rest, for the expense of formation, causewaying, and paving is expressly laid upon Mr Thomson and his foresaids. All is to be done at ‘their own expense.’

At the same time, making all the streets open as real liens and burdens, applies to this piece of

Reid Street as well as to the rest. The obligation to form and causeway is a superadded obligation, superadded for good and obvious reasons.

In reference to this portion of Reid Street, therefore, the pursuer has been entirely successful, and the Lord Ordinary has given him decree as concluded for.

(4.) The remaining portions of Reid Street, so far as fronting the defender's property.

The obligations as to these portions of Reid Street, rest partly on the disposition of 1854, partly on the disposition of 1858, and partly on the disposition of 1860, already so fully referred to. Strong arguments are also derived from the earlier titles, and particularly from the sasines in favour of Reid and his trustees, which are made binding on the defender.

It is unnecessary to go over the grounds again. The Lord Ordinary thinks that under his own titles the defender is bound to leave half of Reid Street or Reidvale Street, so far as it is opposite his property, open and unenclosed. But here again the pursuer's conclusions are too broad, for the Lord Ordinary cannot discover any obligation on Thomson binding him to form or causeway. In short, excepting only the little bit of Reid Street above dealt with, and which is in an exceptional and peculiar position, Thomson's obligations are really those of an owner of a servient tenement—they consist patiendo non faciendo.

It only remains to notice one or two points on which the defender specially relied.

He maintained that none of the plans were made parts of the title, but that any reference to them was merely for description. This is not so. The plan, No. 109, is expressly made part of and signed as relative to the disposition of 1860, and it goes a long way in the pursuer's favour. It may be true that Kyle's original and general feuing-plan is not made part of the title, for it embraces subjects belonging to third parties who never consented thereto, but portions of it seem to be made conditions of the grants when particular streets are made mutual between adjoining feuing blocks. It is also to be kept in view, as favouring the pursuer's argument, that the whole ground is building ground which can only be utilized by being laid out in streets, and covered with buildings. It is just in reference to such land that such mutual obligations and contracts might be expected.

The defender urged that, as the whole ground was burgage, there could be no tie or connection between the lots, as there is when the whole are held of a common superior. This is true, but there is no incompetency in the owner of burgage lots selling them out and imposing obligations on the purchaser, either in favour of himself or in favour of his successors; and these obligations, if aptly expressed, as they seem to be in the present case, will be enforced.

The defender urged, that, under a portion of his half of Reid Street, there was clay said to be very valuable, which he wished to work out before opening up Reid Street. If it were a mere question of a few months, or even a year or two, there might be some reason in this, but when it is considered that, as to one part of Reid Street, the defender and his father have been under obligation to open it for 20 years, and as to the remainder for 12 years, the defender can hardly say that the pursuer is precipitate in enforcing it. Even yet, if a specific

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motion had been made for a few months' delay, the pursuer intimated willingness to consent, the natural level of the ground being made up again. A very few weeks or months would work out all the clay under half the street. But the defender has not yet begun to work it. The clay will not serve as an indefinite suspension of his obligation.

Lastly, the defender contended that the City of Glasgow Union Railway having been constructed through a portion of the lands embraced in Mr Kyle's old general feuing-plan, the whole feuing-plan and the whole obligations in any of the titles at once flew off and came to an end. This is far too violent a proposition. The railway only went through a part of the ground, and, although at that part the general feuing-plan was interfered with, it is imposible to maintain that in other portions of the ground the feuing-plan cannot be carried out. The railway does not interfere with those portions of street embraced in the conclusions of the present action. These streets when completed will be substantially the same as originally intended, the only alteration being a slight deviation of Reid Street wholly on the pursuer's ground. The portions of street now ordered to be opened up are not altered one inch by the railway, and the only prejudice which the defender can allege from the railway is, that for a small space along Reid Street his breadth for building is somewhat narrowed. But the defender has received compensation from the railway company for this injury, and it would be most unjust if, in addition to the compensation which he has recovered, he were to be released from his whole obligations to the pursuer.

The pursuer's conclusion for damages was not seriously insisted in. It rather appears that no substantial damage has been sustained, the prices of building ground having greatly risen. But even were it otherwise, the question of right was a fair question to try, and the pursuer has failed, excepting to a small extent, to fasten upon the defender any obligation to form or to causeway the streets.

The Lord Ordinary has modified the pursuer's expenses, because he has been unsuccessful in his attempt to compel the defender to form and causeway, and this formed throughout an important part of the pursuer's demand.”

Argued for Dennistoun—That similar burdens had been laid upon each party by his author, which each was entitled to enforce as against the other. That although the mere description of lands in a conveyance as bounded by the middle line of a nonexisting street does not imply an obligation to make the street, the obligation to make a street or to leave one open, may be implied from the conveyance itself where there are indications of such an intention. By the deed of 1866 the pursuer stands in precisely the same position as to both rights and liabilities as did the Western Bank, his own and the defender's author, and he would have been entitled to enforce all the rights of the Bank against the defender, even had the latter been a singular successor, which he is not, being son of the original disponee. Trs. of Free St Marks v, Taylor's Trs., Jan. 26, 1869, 7 Macph, 415; Tailors of Aberdeen v. Coutts, Dec. 20, 1834. 13 S. 266, aff. Aug. 3, 1840, 1 Rob, 296; Gordon v. New Club, March 2, 1818, 6 Pat. 351; Bell's Prin., 979, 992.

Argued for Thomson—That the defender was not bound to open the streets referred to; and, secondly, that even if he were, the pursuer had no right to enforce the obligation. That reference in a title to a description of lands as bounded by a certain line, imposes no obligation not to build up to the bounding line. By the disposition of 1866 full rights and privileges were given to the pursuer in the streets west of Sword Street. No such grant was made regarding streets east of Sword Street, and therefore it is to be inferred that such rights were intended to be withheld. A plan referred to in a feu-contract is only binding in reference to the particular point for which it is referred to; the plan here was simply for the purpose of identifying the subject, and for nothing else. The defender, if he is subject to a servitude only, cannot be called upon to do anything; if there is an implied agreement to make or pay for making a street, the pursuer is not in right of that agreement.— Gould v. M'Corquodale, Nov. 24, 1869, 8 Macph. 165; M'Gibbon v. Ranken, Jan. 19, 1871, 9 Macph. 423; Alexander v. Stobo, March 3, 1871, 9 Macph. 599.

At advising the judgment of the Court was delivered by Lord Ardmillan.