Scottish Court of Session Decisions

In 1869 the pursuers Messrs Baird & Company obtained from Sir Archibald Edmonstone a lease (of which at the time this action was raised there were twenty-two years still to run) of the coal, ironstone, and other minerals on the estate of Kilsyth, “including those in and under the town of Kilsyth, in so far as the said first party (Sir A. Edmonstone) had right thereto.” The action was brought by the pursuers to have it declared that they had the sole and exclusive right to work and carry away during the currency of the lease the whole ironstone and other minerals in and under the said lands of Barrwood. The action was brought against Sir William Edmonstone, the successor of Sir Archibald Edmonstone, and proprietor of the estate of Kilsyth, and against certain parties feuars in the town and neighbourhood of Kilsyth, under titles flowing from the predecessors of the granter of the above-mentioned lease. Sir William Edmonstone did not put in appearance as a defender, but the greater number of the parties called as feuars did do so.

The following pleas of the parties sufficiently set forth the nature of the action. The pursuer pleaded—“(1) The pursuers have right to work the minerals specified in the lease libelled lying in and under the lands of Barrwood, in respect they belong in property to the defender Sir William Edmonstone, and are included in the said lease. (2) The said defender has right under his titles to the property of the said minerals, in respect they have not been feued out or disponed by him or his predecessors or authors. (3) The defenders other than the said Sir William Edmonstone, feuars in the burgh of Kilsyth, or as in right of such feuars, have no right or title to the said minerals, in respect they were not included in the original feurights.”

The defenders pleaded—“(1) The pursuers have not set forth and do not possess any title to sue the present action. (4) The action should be dismissed or the defenders assoilzied, in respect that the minerals in question belong to the defenders, for their respective rights and interests, by virtue of their titles, and possession following thereon.” What was pleaded amounted to this, that while it was not disputed that if Sir William Edmonstone was at the time he granted the lease to the pursuers proprietor of the lands of Barrwood, the pursuers were by that lease entitled to work the minerals in question, the defence was twofold—1st, That this being in point of fact an action of declarator of property, the pursuers had under their lease no title to pursue; and 2d, that on the merits of the case the lands of Barrwood belonged in property to them in virtue of their feu-charters, under which the said lands were conveyed absolutely to them, the feuars, and that no reservation of minerals being mentioned, the minerals were conveyed to them with the property.

The titles were very numerous, but the Lord Ordinary selected from them certain test charters as showing fairly the intended nature of the right, and the same course was subsequently adopted in the Inner House. The principal charter produced was that dated 9th February 1709, and granted by Viscount Kilsyth in favour of Robert Patrick, the terms of which and the other charters chosen as tests will be found, so far as essential, in the Lord Ordinary's note.

It may shortly be stated that the titles produced by the defenders for the lands of Barrwood differed in some respects as regarded the terms in which rights given to the feuars were expressed, but the question came to be whether the words “proportional part of the lands of Barrwood” or “part of Barrwood,” by which words rights to the lands were conferred on the respective feuars, could be interpreted to mean a conveyance of a right amounting to common property in Barrwood, or whether they could only be held to convey a privilege or right of servitude over the surface of the ground.

The Lord Ordinary, on March 19, 1878, in an interlocutor of that date, assoilzied those of the defenders against whom decree in absence had not gone forth, on the ground that their titles were sufficient to instruct a right of property in them in the minerals. The Lord Ordinary appended to his interlocutor the following note:—

“ Note.—Kilsyth is a burgh of barony founded prior to the year 1687. The pursuers allege that in or about that year James Viscount Kilsyth commenced to feu out the said burgh into forty-five steadings, each consisting of 20 falls of ground or thereby, for houses and gardens, and these steadings constitute the old town of Kilsyth.’ They add that—‘By the original feu-contracts under which the several steadings were feued there was conveyed to each feuar, “with the rest of the inhabitants of the said burgh and toune of Kilsyth, ane porportionall pairt of the said Noble Viscount his lands called Barrwood (which is to be ane Commontie to the said whoall burgh), gres, moss, meadow, and arable land thereof effeirand to ane burges steading of the said burgh presentlie possessed by the inhabitants thereof.”’ As the Lord Ordinary reads the condescendence, the pursuers do not dispute that the whole forty-five feus were given out with a right to a proportional part of Barrwood. Nor do they say that Sir William Edmonstone or his predecessors have re-acquired anything that was given off to the original feuars. Their case is, that the right in Barrwood was short of a right of property, and amounted to a privilege only, though what they meant by this privilege they did not clearly define.

“The defenders have produced certain titles to instruct a right of property in Barrwood. In some cases the original feu-charter is produced. The charters are not, however, all in the same terms.

One type of the charters is to be found in the charter dated 5th February 1709, in, favour of Robert Patrick. It conveys 20 falls of lands within the burgh, with certain privileges thereto annexed, and proceeds thus:—‘Lykeas we be virtue of the said contract of allienation, hes sold, annailzied, and disponed, and be the tennor hereof sells, annailzies, and dispones, and in feu-ferme and heritage perpetuallie letts and demitts to the said Robert Patrick, hes sd. spous, and yr. forsds., with the rest of the inhabitants of the

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said burgh and toune of Kilsyth (with and under the provisione and conditione contained in the sd. contract), ane proportional pairt of our lands of Barrwood, with the rest of the inhabitants of the sd. burgh, as sd. is, gress, moss, meadow, and arrable land yrof effeirand to ane burgess steading of the sd. burgh and toune of Kilsyth, presentlie possessed be the inhabitants yrof, boundit in manner mentioned in the said contract, as the samen of the date above written, containing divers uyrs clauses and obligements yrintill, at mair length is contained.’ There is a separate reddendo applicable to the 20 falls and to the proportional part of Barrwood. The ‘feu-ferme dutie,’ which is payable for the 20 falls is doubled for the entry of heirs, but with the proviso of ‘naeways doubling the rent of the said Barrwood at any entrie in tyme coming.’ There is a precept for giving sasine in ‘the forsd. twenty falls of land or yrby, tenements of lands, houses, yards, privilledge of burgageshipe, pairt of Barrwood, with all uyr liberties, and privilledges, pairts, pendicles, and pertinents yrof qtsomever, in mainer abune mentioned, to the said Robert Patrick and his said spouse and yr forsds, or to yr certain acturnays in yr names, bearers heirof, be deliverance of earth and staine of the sds lands.’

The sasine is in terms of the precepts; but in this case the words ‘successively and respectively’ do not occur. In some other cases these words are to be found in the sasines, though not in any case, as the Lord Ordinary understands, where the title has been traced down as a pro indiviso title to any of the present defenders.

Another form of charter is to be found in the feu-charter granted on 7th February 1681 to John Buchanan. The main difference is that it does not contain words of present disposition, applicable to the ‘proportional part’ of Barrwood. The words are ‘in feu-farm and heritage perpetuallie letts and demitts.’ The precept and sasine are the same, with this qualification, that the words ‘respectively and successively’ occur.

The titles which the defenders have produced are all more or less connected with feu-charters of the kind of those above mentioned, and the right of the defenders has been recognised by charters of confirmation of precepts of clare granted by the predecessors of Sir William Edmonstone. But the pursuers have criticised the terms of these titles, and they maintain that no valid infeftment has been taken in Barrwood either as a pro indiviso or several right.

So standing the case, the defenders, as the Lord Ordinary understood, conceded that they could not maintain their case if a charter such as that granted in favour of Patrick did not convey a right of property in Barrwood. The first question therefore is, Whether it does or does not convey such a right? The Lord Ordinary is disposed to answer this question in the affirmative. It ‘dispones, and in feu-farm and heritage letts and demitts’ a proportional part of Barrwood. The conveyance seems to be consistent only with a disposition of property. The dispositive words are applicable to Barrwood only, and as a separate subject. There is a separate reddendo for that subject. It is not of importance that it is not doubled at the entry of heirs, nor, as it appears to the Lord Ordinary, that it is called rent; what truly is material is that a proportional part of the lands is disponed, and the right so conveyed cannot, it is thought, be short of a right of property.

An objection somewhat pressed on the Lord Ordinary, from the fact that the extent of the right given could not be ascertained from the deed itself. But he was relieved of the difficulty from the circumstances that the pursuers attached little if any importance to it, and because the conveyance is in this respect very similar to that which occurred in the case of Wright, 8 S. 247, and 5 W. and S. 242, and which was held to carry a right of property.

The possession held by the feuars is consistent with this view of the charters. They seem to have possessed Barrwood as owners, and even to have divided it into different lots, though the scheme of division was never sanctioned either by the superior or by the Court. Some of the later titles—indeed the greater number—profess to convey a separate portion of Barrwood.

The pursuers then objected to the sasine, in that, while the lands are discontiguous, it did not set forth that infeftment was taken in the lands respectively and successively. The Lord Ordinary has great doubts whether the pursuers can enter on this question, and to this matter he will afterwards advert. But he is disposed to hold that the sasine is sufficient. It does not set forth that there was one act of infeftment only. On the contrary, it sets forth that in the lands specified in the dispositive clause sasine was given by delivery ‘of earth and stone of and upon the ground of the said lands’ (see Gordon, 5 Broun's Supp. 587). But this point is the less material, because there are sasines to which this objection does not apply.

These observations relate to the completion of the original title; but the Lord Ordinary may notice a title to which much reference was made in the course of the discussion, viz., Catherine Glen's title. The original feu-charter is not produced, but she produces an infeftment of 1783, in which her predecessor John Hamilton was infeft on a precept of clare, inter alia, in all and haill a proportional part of Barrwood; a precept of clare constat, dated 7th May 1855, in favour of William Hamilton, John Hamilton's heir, in which the granter directs infeftment to be given in all and whole the foresaid ten falls of land, and ‘all and haill ane proportional part of the lands of Barrwood, effeiring to the burgess steading foresaid;’ and an instrument of sasine dated 8th June 1855, in which the notary gives sasine ‘of the foresaid lands above described.’ The title of Catherine Glen is deduced from William Hamilton in the ordinary way.

The pursuers object to the infeftment of 1783 in that it does not contain the words ‘successively and respectively.’ The only objection to the infeftment of 1855 was that the words ‘lands and others above described,’ could not be read as applying to Barrwood. This objection, in the opinion of the Lord Ordinary, is unfounded.

“1. The defenders maintain that inasmuch as the original charters conferred a right of property in Barrwood on the feuars, the pursuers are not in titulo to try with them whether the title has been validly completed or validly transmitted. In the opinion of the Lord Ordinary this plea is well founded. The pursuers have only a temporary right, which terminates in

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twenty-two years. They have a lease of the minerals ‘in so far as the first party has right thereto.’ Neither Sir William Edmonstone nor his predecessors have challenged the title of the defenders to possess under the charters everything that was given out thereby. On the contrary, the predecessors of Sir William have, in many cases before the pursuers' lease existed, recognised the right of the feuars by granting charters of confirmation or precepts of clare in order to confirm or transmit the original feurights. It seems to the Lord Ordinary that the defenders are not bound to try with the pursuers every question which may be raised touching the validity of their title or the obligations which Sir William Edmonstone may be under to cure any imperfections that may exist. It is true that Sir William is called as a defender, but he has not entered appearance, and any decision which might be pronounced would not be res judicata against him. Indeed, the case, as stated by the pursuers in their condescendence, is not intended to raise the minute examination of title into which they have entered. The only question which is really raised is the extent of the right of the feuars as appearing on their original feu-charters, and if this be decided against the pursuers the case seems to be at an end.

It is true that the charters are not all the same, inasmuch as some do not contain proper dispositive words as applicable to Barrwood. But this makes no difference in the result. For the right given to those feuars whose charters are not subject to this objection was a pro indiviso right of property, and the existence of any one such right would necessarily be conclusive against the pursuers who seek to declare a sole and exclusive right.

2. But in the opinion of the Lord Ordinary certain pro indiviso rights of property were duly created by the original charters and sasine following thereon. It follows that the predecessors of Sir William Edmonstone were divested of the sole right to the minerals in Barrwood, and if the original rights have not been duly transmitted to the defenders, they remain in the hœreditas jacens of the grantees, or of those persons in whom they were last duly vested.

No doubt the pursuers maintain that the whole minerals are in the superior's title subject only to such feu-rights as exist over it. This is true, but in the opinion of the Lord Ordinary the pursuers are not under their lease entitled to try whether feu-rights which have been given off have ceased to exist, nor are the defenders, who are in possession of the subject, bound to enter into that question with them. It must be shown in a competent action that the feu-right is extinguished, and Sir William Edmonstone has the only title to raise such an action. He has never raised or indicated any intention of raising any such action. Nor is it even alleged that any of the original feu-rights have become extinct or have lapsed to the superior. Besides, the lease cannot, it is thought, be read as letting to the pursuers minerals of which the superior was once divested, and which he has not shown by a competent action to have been restored to him.

3. But the title of Catherine Glen seems to the Lord Ordinary to furnish by itself a sufficient defence to this action. She is infeft in a proportional part of Barrwood, under a precept of clare granted by Sir Archibald Edmonstone before the pursuers' lease. It may be open to Sir William Edmonstone to challenge the title, but he has not done so. Nor indeed have any grounds for a challenge been suggested, except that the original feu-right did not convey a right of property. But if it did, and if Catherine Glen stands infeft as a pro indiviso proprietor, the pursuers can never claim the sole and exclusive right to the minerals, which is the only question raised in this action.”

The pursuers reclaimed, and argued:—

On the competency of the action—

The question upon this point was, Whether, this being in point of fact an action of declarator of property, the pursuers, being tenants under a lease, had a sufficient title to sue?

Argued for pursuers—On the statements made by the pursuers in their condescendence and pleas-in-law there was no competition of right and no question of property—all that they asked was to have it found that they had a right to work these minerals during the currency of their lease. The question of property was not raised by the pursuers, but by the defenders, who claimed the property as against the superior Sir William Edmonstone. Further, the pursuers were in the place of the superior in this matter, for by the lease he directly assigned his right to work the minerals to them, and they were therefore entitled to vindicate his right. They did not seek to challenge or consider every step in the vassals' progress, but they certainly had a right to construe the original feu-charters by which alone the vassals had right to show that the minerals were conveyed away by the superior.

Argued for defenders—What the pursuers really asked was to have it declared that they had the sole and exclusive right to the minerals. The right given by the superior to the pursuers in the lease was qualified by the words “in so far as the first party has right thereto.” It was a conditional right to work, and the pursuers could not purify the condition, as the defenders produced writs flowing from the superior prior to the lease habile to convey lands and minerals. The defenders produced a precept of clare constat by the superior prior to the lease. While both stood, even the superior could not sue in such an action as the present; he must reduce the precept first. Further, the pursuer had merely a temporary right, and could no more raise this action than a yearly tenant. Also a judgment against this pursuer could not be res judicata against the superior.

On the merits—

Argued for the pursuers—The question was as to the construction of the original feu-charter, in the consideration of which it was allowable to take into account the feu-contract which preceded it, the instrument of sasine which followed upon it, and the early transmission from one vassal to another, not with a view to control the charter, but in order to arrive at its true intent and meaning, which owing to the obscurity of the old language could not be fully understood. By the feu-contract there was conveyed (1) a steading in the burgh of Kilsyth; (2) a proportional part of Barrwood. The first was certainly given in feudal form, but the second was different. There only a servitude right was conveyed, or at least something short of property; for while in regard

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to the burgh the word “dispone” was used in all the charters, there were frequently only the “letts and demitts” with reference to Barrwood. The words “heritably and irredeemably” were also invariably used in the dispositive clause regarding Kilsyth, while they were invariably absent in the deeds regarding Barrwood. In the dispositive clause of this contract ( see Lord Ordinary's note) it was impossible to say that (there being no particular portion separated from the rest) what was given was a pro indiviso right, and the number of disponees being quite indefinite it was impossible to feudalise the right in anyone. The words “grass, moss, meadow, and arable,” used in that clause, were taxative of the right which was conveyed. If the word “arable” had not been used it would have been a servitude, and the addition of “arable,” while it enlarged the right, kept it short of property. In the reddendo clause the same distinction was kept. The return for the burgh-steading was termed “feufarm duty,” while that for Barrwood was simply called rent. The former was to be doubled at each entry, while the latter was not. Again, while there was an obligation by the superior to infeft the vassal in the burghal steading, there was none to infeft in the part of Barrwood, and it was provided that every person acquiring or taking a tack or burghal steading should receive therewith a proportional part of Barrwood.

Authorities—Duff's Feudal Conveyancing, 112; Harvie v. Stewart, Nov. 17, 1870, 9 Macph. 129; Bain v. Duke of Hamilton, May 19, 1865, 3 Macph. 821; Campbell v. M'Kinnon, March 20, 1867, 5 Macph. 636, H. of L. 8 Macph. 40; Richardson v. Gray, July 14, 1876, 3 R. 1031, H. of L. 4 R. 176; Duke of Athole v. Stewart, Nov. 18, 1825, 4 S. 197; Bowmont v. Glen Lyon, July 11, 1843, 5 D. 1337; Johnston, M. 2481; Balfour v. Moncrieff, Elchies' Notes, title Commonty, No. 8.

Argued for defenders—The terms of the feu-charter were sufficient to convey the property of Barrwood. “Letts and demitts” were words as sufficient the date of these deeds as “dispone” would have been. The clauses could only, when fairly construed, be held to mean a conveyance of the property in Barrwood, and the precept of sasine authorises infeftment of Barrwood. But if this was not a conveyance of property, of what was it a conveyance? The defenders' contention was intelligible; the pursuers could only say it was a privilege, but they did not say of what kind or to what extent. The enumeration “grass, moss, meadow, and arable” could only be construed in two ways. Either it enumerated the different kinds of lands conveyed to the defenders, or the uses to which the lands might be put. But the pursuers could not adopt either—the first because they wished to modify the dispositive clause by these words; the second, because they could not admit that the defenders were entitled to use the lands for arable purposes, and they therefore said the word “arable” referred to a kind of land. But that did not assist them, for what servitude or privilege could be held over arable lands. The charter being sufficient to convey property, and possession of the surface being the only possession that had followed, being with the feuars alone, the minerals must be held to be the property of the feuar.

Authorities— Calder v. Adam, March 2, 1870, 8 Macph. 645; Stobbs v. Craven, March 14, 1873, 11 Macph. 530; Boyd v. Bruce, December 20, 1872, 11 Macph. 243; Martin v. Millikin, Dec. 24, 1864, 3 Macph. 326; Wright v. Logan, Dec. 15, 1829, 8 S. 247, 5 W. and S. 542; White v. Calder, June 29, 1815, F.C.; Bell's Prin. sec. 871; Maxwell, M. 14,318; Lord Hermiston, M. 14,326; Gordon v. Brodie, July 20, 1773, 5 Brown's Sup. 587.

At advising—