Scottish Court of Session Decisions

John M'Laren, brassfounder, Glasgow, the pursuer in this action, was heritable proprietor of a tenement in Glasgow with a frontage to Stockwell Street. The subjects consisted of a high front building divided into flats, and of back buildings chiefly in the occupation of the pursuer, and used by him in connection with his business. Access to the back buildings was obtained by means of a narrow passage or pend passing by an archway under the front tenement. This passage was the subject of the present action. The width of it as it passed under the front tenement was about 4 feet, and its length 40 feet 6 inches. The rest of it was about 6 feet wide, and about 40 feet long. The premises were in the possession of the pursuer, and had always been possessed as an undivided property. They adjoined on two sides ground belonging to the City of Glasgow Union Railway Company, the defenders in this action, viz., on the south the railway works and station and viaduct, and on the west premises fronting Moodie's Court and entering from it.

This being the position of the premises, the pursuer on 11th July 1876 received from the defenders a statutory notice that they required to take for the purposes of the railway a triangular portion of the back part of the subjects above described extending to 120 square yards, as delineated and coloured red on the plan which accompanied the notice. The pursuer declined, under the 90th section of the Lands Clauses Act, to part with this extent unless the defenders would purchase the whole property as held by him. Eventually, after some correspondence, the defenders agreed to purchase a part of the pursuer's ground extending to 301 square yards, consisting of the back half of the property as above described, and which included the 120 yards the subject of their former notice. The subjects thus sold were, as above described, adjacent on the south and west to railway properties. They were used for workshops, and reached by the narrow passage in dispute. The pursuer accepted the offer at the price of £4500, and the following were the missives that passed between the parties.

“27 th March 1877.

Union Railway, St Enoch's Station.

Dear Sir, —Referring to our meeting this morning as to Mr M'Laren's claim, I am now authorised to offer you the sum of four thousand five hundred pounds (£4500) for the back ground, extending to 301 square yards, regarding which we have been in treaty, including compulsory sale and all claims at the instance of Mr M'Laren, or any parties on his behoof, for injury to business, cost of removal, and other consequences of compulsory removal from occupancy of the premises.

I need hardly mention that in the event of this offer not being accepted, it shall not be founded on or referred to in any future proceedings. A. B. M'Grigor.”

“179 West George Street, Glasgow,

29 th March 1877.

St Enoch's Station, Union Railway—M'Laren.

A. B. M'Grigor, Esq., writer.

Dear Sir, —I was duly favoured with your letter of 27th inst., and am now instructed by Mr M'Laren to accept the offer therein made of four thousand five hundred pounds (£4500) for the back ground and relative business claim, all as therein stated.

It is understood that the price will be paid at Whitsunday next. Please confirm this… . I am, yours truly, John Miller.”

The subjects sold when measured were found to contain 294 square yards and 6 square feet or thereby imperial measure. A question then arose

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whether the defenders were entitled to access by means of the passage or pend above referred to, from Stockwell Street through the front building which remained in the pursuer's possession, to the back premises purchased by them.

The pursuer therefore raised this action to have it found and declared that the defenders “have no right or title, under the contract of sale so entered into, by virtue of their compulsory powers between them and the pursuer, to any servitude or right of access to the portion of ground so purchased by them from the pursuer, and the buildings and others erected or to be erected thereon, through the remaining portion retained by the pursuer of said subjects, of which the subjects so purchased by the defenders are aforementioned a part:” and that the defenders should be ordained to implement their part of the contract of sale, and to pay the price, and to accept a disposition containing all usual and necessary clauses, “and, in particular, a clause specially providing and declaring that the defenders, their successors and assignees, shall have no right of access in all time coming from Stockwell Street to the subjects and others thereby disponed through the remaining portion retained by the pursuer of the foresaid subjects belonging to him, of which the subjects thereby disponed are a part.”

The pursuer stated that at the time the agreement was entered into it was not in the mind of either party that such an access should be given, and that if it had been he would have insisted on his right that the whole of his property should be purchased; also that it was not in contemplation in fixing the price. He further averred that it was not necessary for the beneficial enjoyment by the defenders of the property acquired by them, as they had access to it on two sides from ground belonging to themselves.

These statements were denied by the defenders, who explained that from the extent of ground named in their first notice the pursuer must have known that they would not require for railway purposes the whole of the 301 yards, and that therefore they would have to sell the remaining portion, for which an access would be required; further, that their ground adjoining was required for railway purposes, and that an access could not be conveniently given through it.

The 90th section of the Lands Clauses Consolidation Act (8 and 9 Vict. c. 19) was as follows:—“That no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house or other building or manufactory, if such party be willing and able to sell and convey the whole thereof.”

The defenders pleaded, inter alia—“(2) The sale of the subjects in question, or in any view of the greater part of them, not having been made under the compulsory powers conferred by the Acts libelled, the pursuer is not entitled to decree of declarator to that effect. (3) Under the contract of sale contained in the missives of 27th and 29th March 1877 the defenders acquired, along with the subjects thereby sold, the existing right of access thereto from Stockwell Street through the pursuer's property; they are therefore entitled to absolvitor from the conclusions of the summons, with expenses.”

The Lord Ordinary ( Rutherfurd Clark) allowed the parties a proof, and after various procedure, on 13th February 1878 he pronounced an interlocutor decerning in terms of the con elusions of the summons. He added this note:—

“ Note—[ After stating the facts]—The question which has arisen is, Whether the defenders are entitled to have an access to the property acquired by them by the passage or pend which was used for that purpose by the pursuer at the time of the purchase? They say that such access is necessary for the convenient enjoyment of the subject which they acquired, and that the right of it passed with the purchase.

In disposing of this question the position of the defenders at the time of the contract must be kept in view. They were proprietors of ground adjoining to that which they purchased from the pursuer. The property to the west, however, was covered with buildings, the back wall of which formed the boundary between it and the ground acquired from the pursuer. There was no existing access between these two subjects, but the latter could be reached by passing under the arches on which the railway was formed, or through a piece of the defenders' ground fronting Stockwell Street. The defenders, however, say that this last piece of ground was used and is required for railway purposes.

No more of the ground bought from the pursuer was used for the purposes of the railway than about 45 yards. As the defenders pointed out, it must have been known to the pursuer that a large portion of the ground would not be required for railway purposes; for the notice to take only included 120 yards, while his counter-notice obliged the defenders to buy 301 yards.

It is in these circumstances that the question has arisen, and on a consideration of the whole case the Lord Ordinary is of opinion that it should be decided in favour of the pursuer.

1. To the Lord Ordinary it appears that the nature and form of the contract excludes the defenders' claim. They acquired the pursuer's ground compulsorily. It is true that a question arose as to the extent of the ground that must be included in the purchase. But that was settled by the limitation of the subject to 301 yards. There was no compromise except on the question how far the defenders' obligation under the 90th section extended. That being settled by the limitation to which the pursuer assented, the case, as it seems to the Lord Ordinary, must be dealt with as if the pursuer had in his counter notice required the defenders to take no more than the 301 yards. But it is nevertheless a compulsory purchase.

The letter of 27th March offers £4500 for the back ground regarding which we have been in treaty, including compulsory sale and all claims at the instance of Mr M'Laren or any parties on his behoof.’ It seems to the Lord Ordinary that the fair meaning of this offer is that the pursuer was to receive the price without being subjected to any burden. He relinquished all claims beyond the price, but he was to get the benefit of the whole price, which he could not do if the remainder of his property was burdened with a heavy servitude in favour of the defenders. This seems to be the more clear when it is kept in view that the subject acquired by the defenders adjoined other ground belonging to them.

Further, the Lord Ordinary thinks that the access claimed by the defenders is not necessary for the convenient use of the subject. They can

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obtain sufficient access from their own ground. In the absence of express stipulation the servitude which they claim cannot, it is thought, be implied.”

The defenders reclaimed, and argued—The ordinary rule was that when property was divided and part given off, the acquirer of the part given off would also get all rights of access pertaining to it necessary to the enjoyment of the property. The sale here was not a compulsory sale under the Act, for after they had given notice to the pursuer, and he had required them to take the whole of his property, they entered into negotiations, and a compromise was come to, and missives were exchanged. There were here all the elements of an ordinary sale, and therefore the ordinary rule ought to apply. (1) The access here claimed was the only access to the subjects sold in use at the time of the sale; (2) it was the natural access to them; (3) there were objections to any of the other possible accesses. For all these reasons, they must be presumed to have purchased the access along with the premises. There was in this sale an implied grant of access, it having been proved to be necessary for the convenient and comfortable enjoyment of these back premises.

Authorities — Cochrane v. Ewart, January 13, 1860, 22 D. 358, and March 22, 1861, 4 Macq. 117; Preston's Trustees v. Preston, March 7, 1844, reported January 13, 1860, 22 D. 366; Baird v. Fortune, May 25, 1859, 21 D. 848; Gow's Trustees v. Mealls, May 28, 1875, 2 R. 729 (Lord Neaves' opinion); Walton Brothers v. Magistrates of Glasgow, July 20, 1876, 3 R. 1130.

Argued for respondent — The railway company were not here in a position of having no other access, for their property was on two sides of the ground they acquired from the pursuer, and they had a perfectly convenient access from those sides. Besides, this was a compulsory sale, and nothing but the 301 yards and what was mentioned in the missives was sold. It was not in the contemplation of either party that the right of access was included in the bargain. If it was to be included, the pursuer must have insisted on his right, and made the defenders take the whole tenement.

The doctrine of Ewart v. Cochrane did not apply here, for this was not a continuous servitude or a way of necessity; it was merely of convenience and advantage; and to carry such a servitude an express grant was necessary. It would extend the principle of this case much too far to say that when a man sold part of his subject he always sold all his advantages along with it. When an adjoining proprietor purchased a part of his neighbour's property, the presumption was that he intended to join it to his own, and in such a case the onus of proving the necessity of any servitude claimed lay upon the claimant. He had in the present case not discharged this onus—in fact the contrary had been proved. The terms of the missives were conclusive, and the ordinary rule of law, supposing it to be what the defenders stated it to be, did not apply.

Authorities— Ewart v. Cochrane and Walton v. Magistrates of Glasgow, quoted supra; Polden v. Bastard, November 28, 1865, L.R., 1 Q.B. 156 (Erie, C. J.); Thomson v. Waterlow, January, February, and April 1868, L.R., 6 Eq. 36; Langley v. Hammond, May 6, 1868, L.R., 3 Exch. 161; Pearson v. Spencer, July 9, 1861, 4 L.T. (N.S.) 769, and 1 B. and S. 571, and 3 B. and S. 761; Worthington v. Simson, 29 L.J., Q.B. 116, and 2 E. and E. 618; Holmes v. Goring, May 20, 1824, 2 Bing. 76; Gow's Trustees v. Mealls, quoted supra; Stair, ii. 7, 10; Deas on Railways, 173–4.

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