Scottish Court of Session Decisions

The pursuer in this action was heritable proprietor of the lands of Violet Grove, Glasgow, from previous to the year 1859 till March 1873. During the greater part of that period, viz., from March 1859 till January 1873, the property was held by the City of Glasgow Bank on a disposition ex facie absolute; but in reality in security. On these lands was formed a street called Cedar Street, built by the pursuer, and for the accommodation of the feuars; he also formed a sewer along it.

The defender acquired two stances in this street by contracts of ground annual from the City of Glasgow Bank, who, as above mentioned, were ex facie absolute owners, and connected his drains with the sewer—no demand being made by the Bank for any part of the cost of the construction of the sewer. The Bank afterwards reconveyed the remainder of the subjects to the pursuer, and he raised this action against the defender, concluding for £33, 8s. 2d., as his share of the cost of forming the sewer.

He pleaded—“‘(1) The said sewer having, in accordance with the universal custom in Glasgow, been so constructed by the pursuer as to be capable of being used as mutual and common, and the defender having, in building on his property, availed himself of said sewer, and connected his drains therewith, he is bound to make payment to the pursuer of one-half of the cost or value thereof, so far as it extends opposite his frontage, with interest as concluded for. (2.) The defender being resting-owing to the pursuer in the sum concluded for, the pursuer is entitled to decree therefor, with interest and expenses as libelled.”

The defender pleaded—“‘(1) No title to sue. (2) The statements in the condescendence are irrelevant and insufficient to warrant the conclusions of the summons. (2) The defender having acquired the right of property and use of said sewer from his authors, who held the same in pleno dominio, he is liable no further in connection therewith than is expressed in his titles from them, which do not impose on him liability for the expense of its construction. (4) The defender's authors having paid the expense of constructing said sewer, so far as opposite his premises, and he having acquired right from them justo titulo the pursuer can have no claim against him. (5) The pursuer's averments being unfounded in fact and untenable in law, the defender should be assoilzied, with expenses.”

The Lord Ordinary pronounced the following interlocutor:—

“16 th September 1873.—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process—sustains the third plea in law for the defender; assoilzies him from the conclusions of the action, and decerns: Finds the defender entitled to expenses; of which appoints an account to be given in, and remits the same, when lodged, to the Auditor to tax and report.

Note.—It is not disputed that the defender in this case has connected the drains of the houses erected by him with the sewer to which the present action relates, which is situated beyond the boundaries of the property belonging to the defender; and it is very distinctly proved that this sewer was constructed by the pursuer when the ground belonging to him was at first laid out for building purposes, and with a view to its being used as the main common sewer for the street in question. In these circumstances, it appears to the Lord Ordinary—and that apart altogether from any evidence of usage or custom—that when a party in the position of the defender acquires a feu upon property so laid out for building, and without any permission, express or implied, from the party then in right to feu the ground, connects the drains of the tenement erected by him with the main sewer, he might be compelled, as contended for by the pursuer, in an action at the instance of the granter of the feus, either to pay a proportion of the expense of making the sewer, or to discontinue the use of it.

That, however, in the view the Lord Ordinary takes of this case, is not the position of the defender. Because, at the date when he acquired his feu and connected his drains with the sewer, the City of Glasgow Bank were ex facie the absolute proprietors of the whole ground, including that in which the sewer was constructed, and were in a position to grant the defender permission to use the sewer in connection with the portion of the property sold to him. And, having regard to the terms of the contract of ground-annual founded on in defence, it appears to the Lord Ordinary that the deed is so worded as to give, by necessary implication, permission to the defender to use the sewer, as he is by that deed taken bound to pay one-half the expense of maintaining the sewer in good order and repair in all time coming in so far as opposite the steading conveyed to him. But the omission in this deed to impose any obligation on the defender to pay any part of the expense of constructing the sewer is, in the opinion of the Lord Ordinary, of itself sufficient to lead to the inference that the expense was covered by the price paid for the feu, and that the right to use the sewer was, on this footing, communicated with the right to the ground, which, it appears from the evidence, it is in some instances the practice in Glasgow to do. And even if the words of the conveyance were not sufficient to lead to this inference, the evidence of the agent who acted for

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the defender when the draft contract was adjusted shows that the question was under consideration of the Bank at the time the feu was granted; and that, while in the original draft of the feu-contract it was proposed to charge the defender with a share of the expense of constructing the common sewer, that was objected to on the part of the defender as not being covered by the agreement, and that the clause was altered so as to limit the obligation to the expense of maintaining the sewer. This evidence was objected to as contradicting the written contract, but as it appeared to the Lord Ordinary to be explanatory of a matter not made clear by the terms of the contract, rather than contradictory of those terms, he did not consider that he would be warranted in rejecting it.”

The pursuer reclaimed.

At advising—