Scottish Court of Session Decisions

This was an action of declarator raised by Messrs Cooper & M'Leod, brewers in Edinburgh, against John Knox Crawford, S.S.C., clerk to and as representing the Edinburgh Improvement Trustees, and against John Mackellar, builder, and Thomas Brady, spirit merchant. The summons concluded for declarator that the Improvement Trustees were bound forthwith to construct an access from the Grassmarket to the pursuers' property, and to maintain it in all time coming, and further, for declarator that the obligation on the Trustees, contained in the disposition in their favour granted by Sir George and Miss Kinloch, had not been implemented; and in the event of the subjects having been in whole or in part conveyed to the other defenders, then for declarator in similar terms against them. The subjects conveyed to the Trustees formed the frontage of a property belonging to Sir George Kinloch, who subsequently sold the back portion to the pursuers. The disposition to the Trustees contained the following declaratory clause:—“That our said disponees shall be bound and obliged, as by acceptation hereof they bind and oblige themselves, at their own expense forthwith to make and construct in a proper and sufficient manner an access from the Grassmarket to the property belonging to us, lying to the south of that hereby conveyed, in lieu of East and West Smith's Closes, by which access is at present obtained, and which access shall be constructed so as to admit a carriage or cart to pass thereon, and shall be upheld and maintained in good and sufficient repair by our said disponees or their foresaids.” The disposition subsequently granted by Sir George in favour of Messrs Cooper & M'Leod contained an assignation in their favour of all the disponer's rights to the access thus provided for.

The pursuers alleged that the Trustees had pulled down the houses on their property, and that they, or those deriving right from them, were building on the ground thus cleared without providing a proper access, only one of 9 feet wide being left. The Trustees admitted that the other defenders were building, and that according to plans prepared by the architect to the Trust, which plans they asserted sufficiently provided an access. Further, they alleged that they had really increased the width of the access to 9 feet, it having only been 6 feet 7 inches wide prior to their operations. It was also admitted by the Trustees that they had granted to the defenders Mackellar and Brady respectively a ground-annual right and a disposition to certain parts of the property acquired by them from Sir George Kinloch, and it appeared that inquiry into the titles had been expressly excluded by the articles of roup. In his answers Brady denied that he had any concern in the dispute, or was under any obligation to give up any part of his ground for the purpose of widening the access, his property adjoining the entrance not having been acquired from the Trustees at all. The other circumstances of the case sufficiently appear from the Lord Ordinary's note.

The pursuers pleaded—“The pursuers having title and interest to insist on implement of the foresaid obligation, and it not having been fulfilled, decree ought to pass for its implement against the Edinburgh Improvement Trustees and their disponees in the said subjects.”

The Trustees pleaded—“The access constructed, or in course of construction, from the Grassmarket to the pursuers' property is a sufficient access, and is so constructed as to admit a carriage or cart to pass therein, and in these circumstances the defenders are entitled to absolvitor, with expenses.”

Pleaded for Mackellar—“1. This defender is entitled to absolvitor, in respect the obligation founded on by the pursuer is not a real burden, and is not a matter of contract with this defender. 3. This defender ought to be assoilzied, with expenses, in respect the pursuers' averments, so far as material, are unfounded in fact.”

Pleaded for Brady—“1. The defender being no party to the contract between the pursuers and the Improvement Trustees, and having purchased the subjects without notice of the obligation therein contained, is entitled to absolvitor. 2. The said obligation having been duly implemented by the Trustees, the parties liable therein, the defender is entitled to absolvitor, with expenses. 3. At all events, the width of the close ex adverso of the subject acquired by the defender from the said Improvement Trustees being reasonably sufficient, the pursuers are not entitled to have it further widened at the defender's expense.”

The defenders Mackellar and Brady agreed to be bound by any proof which might be led between the pursuers and the Improvement Trustees, and the action was sisted against them until the proof should be completed.

A proof was accordingly taken, and the

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Lord Ordinary on 22d January 1876 pronounced the following interlocutor and note:—“The Lord Ordinary … Recals the sist as to the defenders Thomas Brady and John Mackellar, contained in the interlocutor of the 11th December last: Finds, that under and in virtue of a disposition of Sir George Kinloch of Kinloch, and Miss Cecilia Kinloch, then residing in Carnoustie, dated 8th and 12th, and recorded 22d May 1874, of those subjects situated on the south side of the Grassmarket, more particularly described in the said disposition in favour of the Trustees under the Edinburgh Improvement Act 1867, 30 & 31 Vict. cap. 43, the said Edinburgh Improvement Trustees, according to the true intent and meaning of the foresaid Act, became bound at their own expense forthwith to make and construct in a proper and sufficient manner an access from the Grassmarket of Edinburgh to the property then belonging to the said Sir George Kinloch and Miss Cecilia Kinloch, lying to the south of the property conveyed by the foresaid disposition, to be constructed the said access so as to admit a carriage or cart to pass thereon, and to uphold and maintain the same in good and sufficient repair in all time coming. Find that the pursuers afterwards acquired said property lying to the south of the property so acquired by the said Improvement Trustees, conform to disposition in the pursuers' favour granted by Sir George Kinloch with consent of Miss Cecilia Kinloch, dated 15th and 20th May 1875, which last-mentioned disposition contains an assignation in favour of the pursuers of Sir George Kinloch's right to the said access, provided for in the disposition to the said Improvement Trustees. Finds that said access must be of the width of at least 12 feet; and before farther answer appoints the cause to be enrolled for further procedure, reserving all questions of expenses.”

“ Note.—Sir George Kinloch and Miss Kinloch were the proprietors of tenements of houses and grounds behind, situated on the south side of the Grassmarket, and the Edinburgh Improvement Trustees, for the improvement of that part of the town purchased in May 1874 the tenement and part of the ground immediately fronting the Grassmarket, but they did not buy the back part of the property, which remained with Sir George and Miss Kinloch.

In the disposition in favour of the Improvement Trustees, which is dated 8th and 12th, and recorded in the Register of Sasines 22d May 1874, a declaration was inserted by which they expressly bound and obliged themselves at their own expense ‘forthwith to make and construct in a proper and sufficient manner an access from the Grassmarket to the property belonging to us, lying to the south of that hereby conveyed, in lieu of East and West Smith's Closes, by which access is at present obtained, and which access shall be so constructed as to admit of a carriage or cart to pass thereon.’ Nothing is said in this disposition as to the manner in which the property lying behind to the south was to be occupied, and nothing is specified as to the dimensions of the passage beyond this,—that it is to be constructed in a proper and sufficient manner, and so as to admit a carriage or cart to pass thereon. Now these words are somewhat indefinite, and this renders it necessary to inquire into the relative position of those parts of the property, and particularly into the nature of the property behind, for an access to which this passage is to be formed.

The property so retained seems to have been entirely occupied at the date of the disposition as dwelling-houses; but, on the other hand, it was ground which, under the improved system of building which was going on, was not so suitable for dwelling-houses, but was more suitable for public works, and it appears that ground immediately, or almost immediately adjoining, is and has been for some time occupied as a brewery by a Mr Jeffrey. The parties, therefore, in entering into this contract, and the Improvement Trustees in undertaking this obligation, must be held to have had it in view that the access which was to be formed was one which should be sufficient for all the purposes of ordinary traffic connected with buildings of every kind for which the ground was suitable, whether of the nature of public works or dwelling-houses. It is not, in my opinion, confined to an access sufficient to let a cart pass with coals or the like to a private dwelling-house, but it means a passage sufficiently wide and convenient to accommodate cart or carriage traffic required for a public work, if Sir George Kinloch or his disponees should afterwards think it necessary or desirable to use the property in that way.

Now the Improvement Trustees have feued the ground belonging to them to Mr Mackellar and others, and Mr Lessels, their architect, has laid out a feuing plan. East Smith's Close and West Smith's Close are on the solum of ground acquired by the Improvement Trustees and feued out by them to those persons; and in lieu of these two closes, which are now to be abolished, they propose to give as an access to Sir George Kinloch's disponees (the pursuers Messrs Cooper & M'Leod) who bought the back property, a passage covered by part of its length by a tenement of houses very much in the line of East Smith's Close. The proposed passage, as laid down in the plan, is about 9 feet or 9 feet 1 inch in width, covered to the extent of 30 feet, and afterwards of the width of 12 feet and upwards, running through the open ground behind in a zig-zag direction southward, and then west again for a considerable extent until it reaches pursuer's property. Assuming the close from the building line of the Grassmarket so far as covered to be on the level, it is plain from the nature of the ground that the passage must ascend by heavy gradients for the rest of its course, and the pursuers say that a passage from the Grassmarket of 9 feet in width is under these circumstances a great deal too narrow. They have brought the present action to have their right declared, and to have the Improvement Trustees, and their feuars Mackellar and Brady, ordained to implement the obligation imposed on them by the disposition in favour of the Trustees, and they claim a passage of 12 feet wide. The defenders, Mackellar and Brady, agreed to be bound by any proof which might be led between the pursuers and the Improvement Trustees, and the action was therefore sisted against them until such proof should be completed. The proof has now been taken, and the sist must now be recalled and judgment given on the effect of the proof.

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A great deal of evidence has been brought on both sides as to this matter. Architects and engineers on the one side say that 12 feet is a proper width for a passage of that kind where there is a heavy gradient. Architects and engineers on the other side say that 9 feet is quite sufficient, and that great width is not necessary in such a case. Some of the defenders' witnesses even say that a passage 7 feet wide would be sufficient. There is here a very decided conflict in what may be called the scientific evidence in the cause, and without other aid it might be difficult to decide between the two classes of witnesses.

It is therefore necessary to inquire whether there is any other kind of evidence in the case sufficient to turn the scale in favour of either of the parties, and in that matter I think the pursuers' evidence has brought out an element which in the defenders' case is entirely awanting, and that is, the evidence of men practically engaged in carting heavy loads from public works such as breweries. I do not mean to say that the defenders are bound to provide an access suitable in every respect to the requirements of a brewery, or that if the requirements of a brewery are in excess of those of other public works as regards the size of the drays and lorries used in carting or carrying goods or material to and from the brewery, the defenders would be bound to supply a passage of extraordinary width. All that the defenders have, in my opinion, to provide is a passage sufficient for the ordinary traffic coming from or going to a manufactory.

Now, those railway contractors, carriers, and carters whom the pursuers have called as witnesses, but none of whom are called by the defenders, are all persons who have had great experience, and whose evidence we have no reason to distrust, and they all say that they find practically that there is great inconvenience in taking heavy traffic through a narrow passage, particularly where there is a heavy gradient at one end of the passage, and they all add that about 12 feet is a proper width for an entrance of this kind. They say that the danger to be apprehended in such circumstances, or rather in the case of a narrow passage, is threefold— first, danger to commodities carried backward and forward; secondly, danger to carts and horses; and thirdly, danger to human beings, and especially to children, where, as in the present case, there are to be common stairs, tenanted by numerous families, opening into each side of the close. It is true, in one sense, that the defenders are not bound to provide for the safety of the public; but if, on the other hand, they construct an access so narrow that the inhabitants of the close are endangered by the passage through it of heavy carting traffic, very great inconvenience and risk of danger must be caused to the proprietor of the carts and lorries used in the close, because in order to avoid injury to persons in the close their carters must stop, and stop upon or at the foot of a heavy gradient, so that the close may be cleared, unless there is room on both sides of the carriage way for the human passengers to keep clear of the horses.

Now, I think, for these three reasons, that the evidence of those persons to whom I have referred turns the scale in favour of the pursuers, and that they are entitled to a wider access than the defenders propose.

The only question remaining to be considered is, What is the proper width? I am disposed on the evidence to say that 12 feet is the least that can be fixed with safety. A passage of less width would not in my opinion be. one constructed in a proper and sufficient manner in the sense of the disposition in favour of the Improvement Trustees. I shall, therefore, pronounce findings that the defenders are bound to give the pursuers an access of 12 feet from the Grassmarket through the property purchased by the Improvement Trustees from Sir George Kinloch, and I shall appoint the cause to be enrolled for the purpose of having practical effect given to these findings.”

On 4th March 1876 his Lordship pronounced a further interlocutor, in which he “Finds, with reference to the findings in the interlocutor of 22d January 1876, and in addition thereto, that the defenders, the Edinburgh Improvement Trustees, were duly infeft in the property in the Grassmarket acquired by them from Sir George Kinloch and Miss Cecilia Kinloch, by the registration of the disposition thereof in their favour in the Register of Sasines for the City of Edinburgh on 22d May 1874, and that the obligation to make, construct, uphold, and maintain the access mentioned in said interlocutor is contained at length in the disposition so recorded: Finds, that after the said disposition was so recorded the said Improvement Trustees conveyed part of said property to the defender John Mackellar, and part to the defender Thomas Brady, and that the said John Mackellar and Thomas Brady are the successors and assignees of the Improvement Trustees in the foresaid parts of said property: Finds that, according to the sound construction of said disposition, the said access is to be constructed from the Grassmarket through the said property to the property on the south thereof, now belonging to the pursuers, and that the obligation to make, construct, uphold, and maintain the said access is effectually imposed, not only upon the said Improvement Trustees, but also upon their successors and assignees in said property: Finds that the obligation to make and construct said access has not been implemented: Therefore, decerns and declares in terms of the declaratory conclusions of the summons: Ordains the defenders, the Edinburgh Improvement Trustees, John Mackellar, and Thomas Brady, forthwith to make and construct in a proper and sufficient manner an access from the Grassmarket to the pursuers' said property of the width of not less than twelve feet, all in accordance with the findings of the interlocutor of 22d January last and of this interlocutor, and that at the sight of George Cunningham, civil engineer, Edinburgh, and thereafter to uphold and maintain the said access in good and sufficient repair in all time coming, and decerns: Reserving to the defenders all claim of relief inter se which may be competent to them or any of them; Finds the defenders liable to the pursuers in expenses;” &c.

The Trustees and Brady reclaimed.

At advising—