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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hill v. Maclaren [1879] ScotLR 16_788 (19 July 1879)
URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0788.html
Cite as: [1879] ScotLR 16_788, [1879] SLR 16_788
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SCOTTISH_SLR_Court_of_Session
Page: 788↓
Court of Session Inner House Second Division.
[Sheriff of Forfar.
v.
Facts:
Certain property was feued out for building purposes by feu-contract, which conferred a right of access by a passage specially marked on a relative plan. The owner of
Page: 789↓
the dominant tenement subsequently provided another means of access to the feuar, and, alleging that the original passage was less convenient and suitable, placed locked gates upon it, though it had been duly made according to the feu plan. There had been no change of circumstances. Held that this substitution of a different passage for the specified one marked on the plan was ultra vires of the owner of the dominant tenement, and order for removal of the obstruction granted.
This was an action raised by David Hill, grocer, Dundee, against George Gordon Maclaren, draughtsman there, concluding for an order on the defender “forthwith to remove the lock placed by him, or others under his authority, upon the door or gate erected at or across the northern portion, at or near Balfour Street, Dundee, of the passage coloured blue shown on plan endorsed on and signed as relative to” the feu-contract of the subjects, and failing his doing so to authorise its removal, and to interdict the defender from again fastening it, and alternatively for an order on the defender to deliver to the pursuer, for his use and that of the residenters in his property, twelve keys for opening the lock placed upon the door or gate. By the feu-contract already referred to, and bearing date 17th and 19th April and 3d May 1872, there was granted a feu of certain ground in Dundee, “with right of access to Balfour Street by the passage coloured blue shown on the said plan, and which passage shall be subject to the same regulations as the first parties to said feu-contract impose on the tenants of the building through which the access is given (but that for residents in the subjects hereby described only), and which passage shall be formed and left in the dwelling-houses, building, or to be built in the terrace north-east of the subjects above described, … all as the said feu-contract which is here referred to in itself fully bears.” The defender, who was the successor of the granter of the feu, in answer averred that the access in question was after formation found unsuitable and inconvenient, and was therefore closed for general use, and another substituted for it in the same terrace, but further east. More recently the defender placed gates upon and closed up the access by the passage, stating that the substituted passage was more convenient and of more easy access than the original passage, and that the pursuer and others having right of passage had been supplied with keys for the locked door on the same, and used, and were still using, the same as a means of access to and from Balfour Street. The pursuer alleged that though promised, no keys had been forthcoming.
The pursuer pleaded, inter alia—“(1) The pursuer having by his titles a servitude or right of access for the residenters in his property by the passage belonging to or claimed by the defender, cannot be debarred from such access or deprived of his rights by any act of the defender. (2) The defender is bound by the mutual contract entered into by his predecessors, and is not entitled to place a lock upon the door or gate across said passage, and to bar access by such passage to the pursuer or those resident in his property, and the lock ought to be removed, or at all events the door or gate ought to be left open and unfastened for the use of those having such right-of-way. (3) At least, and alternatively, the defender is bound, in implement of his undertaking, and at common law, to furnish the pursuer with keys for said lock, for the use of those entitled to exercise a right-of-way through the passage in question.
The defender pleaded, inter alia—“(3) The defender or his predecessors having right to substitute another passage equally convenient for the original passage, and a passage more convenient and easy of access having been substituted for the passage in question, this action ought to be dismissed with expenses. (4) The servitude of passage claimed by the pursuer being extinguished by the substitution of another passage more convenient in lieu thereof, this action should be dismissed with expenses.”
The Sheriff-Substitute ( Cheyne) pronounced an interlocutor finding, inter alia, “that the substituted passage, though somewhat longer than the original passage, is not unreasonably so, and is in other respects better and more commodious than the original passage, and that this being so the pursuer cannot object to the substitution;” and assoilzieing the defender. He added the following note:—
“ Note.—The main question in this case, though a small one, and not admitting of much being said about it, has given me some anxiety, and I am free to admit that the decision to which I have found myself compelled by the authorities to come is rather against the view which in the absence of these authorities I should have been inclined to take. For conceding it to be a general principle applicable to all servitudes that they are to be exercised in the least way burdensome to the servient tenement, I should have thought that it was carrying this principle an undue length to hold that when a definite line was fixed in the deed constituting the servitude, that line could be altered without the consent of the owner of the dominant tenement. However, the authorities ( Bruce v. Wardlaw, 1748, M. 14,525, and Ross v. Ross, 1751, M. 14,531) are too strong for me, establishing, as I think they do, that all private servitude roads may be altered provided the new course is not unreasonably distant or less convenient. It is true that in his report of the case of Bruce v. Wardlaw L. Kilkerran intimates a doubt whether it could be held as laying down any general rule, but then it was followed by the case of Ross, and it is, along with the last-mentioned case, cited—Prof. Bell (Prin. sec. 1010), and Prof. More (Notes to Stair, 222)—as an authority for the general proposition; see also Ivory's Ersk. ii. 9, sec. 12, Note 191. Upon the question of fact, upon which Mr Boothby was asked to report, there does not seem to me to be much, if any, room for doubt.”
The Sheriff ( Maitland Heriot) adhered.
The pursuer appealed.
At advising—
Page: 790↓
The real question comes to be—Whether after the title had been granted, and after the building operations then only contemplated had been completed, it was then in the power of the defender to alter the passage—to substitute another for it—as if it had been an ordinary right-of-way to a field? I cannot think he had the power to act thus. This is quite a different case from that of an ordinary right-of-way, where a person has granted, not a specific or defined right, but something much more general, and this difference is extremely well marked when we see in right-of-way cases how the Court itself has frequently laid down subsequently to the granting of the right the exact course over which it is to be exercised. It is quite another matter when, as here, we are dealing with a specific line, the subject of an onerous contract, and it is not in the defender's mouth to say that any other line is equally good for the feuars.
I am not aware of any case in which a line has been specifically laid down and permission to alter it has been afterwards given by the Court, and to sustain the defender's contention this would have to be done. I think the Sheriff's judgment must be altered.
In these circumstances it might well be contended that his right of access is something more than a mere servitude, and that he cannot be deprived of it without his consent merely because another equally convenient access is given to him in substitution by the defender as owner of the dominant tenement. But, assuming that the pursuer's right of access is of the nature of a servitude, it must be borne in mind that it is a positive and not a negative one. It is of great importance, therefore, to the pursuer that his right as it stands at present is regularly feudalised by charter or disposition and sasine, and being so has entered the public records as a part and pertinent of his property. But it is by no means clear that the pursuer would have an equally well-constituted right to the proposed substituted passage or access, for it is not constituted directly and expressly in his favour or in the titles of any property of his. It is referred to in the titles of other parties, and of property with which he has no connection. Besides, it appears to me to be far from certain, as the matter stands at present, that the other feuars or parties referred to in Mr Boothby's report as having right to the proposed substituted passage may not object, and have a good right to object to the benefit of it being extended to the pursuer or to any other persons but themselves. It was, no doubt, said at the debate on the part of the defender that he was willing to constitute in favour of the pursuer the proposed substituted passage or access in such a way as to be as valid and effectual and secure to him as the passage or access which he now has. But it appears to me that the defender ought to have satisfied the pursuer in regard to this before he closed up the existing access or passage.
For these reasons, and without determining whether a right of passage or access constituted as the pursuer's is can competently be cast about and another substituted for it as proposed by the defender—a point on which I should desiderate fuller argument than we have yet had before deciding it—I am of opinion that in the existing circumstances no good answer or defence has been made by the defender to the pursuer's petition, and therefore that judgment ought to be pronounced in favour of the pursuers in accorddance with one or other of the alternatives of the prayer of the petition, leaving it open to the defender to endeavour to get the matter adjusted with the petitioner, and failing that to apply to the Judge Ordinary for such redress as he may think himself entitled to.
If the defender in an onerous contract fixed the situation of this passage, it is ultra vires for him to alter it at his own hand. There is here no change of circumstances whatever, for I am not prepared to say that such an alteration or substitution might not under very changed circumstances possibly have been justified. To say that there is now another way in use provided by the defender is no answer at all.
Suppose this had been a right-of-way laid down by the Court on a particular line, it could not after that have been altered. That applies in the present case. The Sheriffs have erred on a too rigorous construction of the authorities cited to them—authorities none of which really apply. I therefore agree with your Lordships that judgment should be given in terms of one or other conclusion of the summons recalling the interlocutors appealed against.
The Court pronounced this interlocutor:—
“Find that the defender (respondent) is not entitled to shut up the access coloured blue on the plan referred to in the feu-contract founded on, or to prevent the appellant (pursuer) from using the same: Interdict the defender from shutting up or obstructing the said passage against the pursuer and the residenters in his said property having right of access by said passage to and from Balfour Street, and reserving to the defender to regulate the use of said passage in terms of the title: Therefore sustain the appeal, recal the judgment complained of, and decern: Find the appellant entitled to expenses,” &c.
Counsel for Pursuer (Appellant)— Mair. Agent— W. Officer, S.S.C
Counsel for Defender (Respondent)— R. Johnstone— Balfour. Agent— J. Smith Clark, S.S.C.