Scottish Court of Session Decisions

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Cite as: [1884] SLR 21_623, [1884] ScotLR 21_623

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SCOTTISH_SLR_Court_of_Session

Page: 623↓

Court of Session Inner House First Division.

Friday, June 13. 1884.

[ Lord Fraser, Ordinary.

21 SLR 623

Smith and others

v.

Stewart.

Subject_1Property
Subject_2Servitude
Subject_3Faculty
Subject_4Negative Prescription.
Facts:

In 1825 the proprietors of land intended to be used for building purposes, which was bounded on the east by a wall running north and south, built on the land of the adjoining
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proprietor, granted in his favour a bond of servitude by which they bound themselves not to build within 20 feet of the wall, and reserved the right to use this space as a road or street, with full power and liberty to the grantee in the bond to “use the said space of 20 feet in breadth as a road or entry for carts, carriages, and others, and to open up a passage or entry, not exceeding 10 feet wide in said dike, but said passage or entry last mentioned not to be further north than the north line of the southmost street to be formed on the ground” of the grantors. In 1827 a street was formed over the northern portion of the space of ground 20 feet wide, the southern portion remaining enclosed, and being used as a washing green. In 1883 the successor of the grantee proposed to demolish the wall so far as it formed the boundary of the southern portion, and to erect on its site the west wall of a new warehouse with a door opening into the washing green. The successors of the grantors presented a note of suspension and interdict to have him prohibited from using the washing green as a road or entry to his property, on the ground that he had acquired only a right of servitude by the bond, which had been lost non utendo. Interdict refused, and held that the right conferred by the bond was a res merœ facultatis, which could not be lost non utendo.

Headnote:

In 1824 the Weaver Incorporation of Dundee feued to the Dundee Joint-Stock Company certain subjects in Dundee described as—“All and Whole that croft of land called Donaldsdale or Donaldson's Croft, with the houses thereon, and dike built on the north side thereof, which whole croft was sometime ago converted into a yard enclosed with a stone dike, excepting always therefrom part thereof on the east side disponed by John Pattullo, father of James Pattullo, presently residing at Broughty-Ferry, to John Baxter, merchant in Dundee …. Bounded the foresaid subjects hereby disponed by a stone dike built by the said John Baxter, dividing the subjects hereby disponed from the said piece of ground disponed to him on the east Together with a liberty and servitude in all time coming to rear and keep fruit trees upon the west side of the foresaid dike built by the said John Baxter.” This stone dike was built on the ground which belonged to John Baxter.

In 1825 the Dundee Joint-Stock Company granted a bond of servitude in favour of John Baxter, by which, in consideration of the sum of £114, 5s., the said company bound and obliged themselves and their successors in the subjects feued to them by the Weaver Incorporation of Dundee, in the following terms:—“That we shall not at any time build or erect any house or other fabric or building whatever within 20 feet of the said John Baxter's said garden-wall, nor upon all or any part of the said piece of ground lying within the said space, reserving always to us, our feuars, tenants, and successors in said subjects the right and privilege to make and use the said piece of ground as a road or street, and also reserving to us and our successors in said subjects, the liberty and servitude in all time coming to rear and keep fruit trees upon the west side the foresaid dike built by the said John Baxter; and farther, we, with consent foresaid, hereby grant to the said John Baxter and his foresaids full power and liberty to use the said space of 20 feet in breadth as a road or entry for carts, carriages, and others, and to open up a passage or entry, not exceeding 10 feet wide in said dike, but said passage or entry last mentioned not to be further north than the north line of the south most street to be formed on the ground belonging to the said company as aforesaid.”

About the year 1827 a street called George's Place was formed by the Joint-Stock Company on their property to the west of the boundary dike It formed the southmost street in that property. This street ran at right angles to and was terminated towards the east by the dike. Shortly afterwards that portion of the space of ground 20 feet in breadth above mentioned running northward from and at right angles to the eastern extremity of George's Place was formed into a street called Idvies Street. The south portion of this space of ground remained enclosed, and was used as a washing green.

In 1883 Mr Shiell's successor in the subjects to the east of the dike, proposed to demolish the wall forming the boundary between his property and the washing green, and on its site to erect the wall of a new warehouse, with a door in it opening upon the washing green.

This note of suspension and interdict was presented by Charles Smith and others, as representing the Dundee Joint Stock Company, to have Mr Stewart interdicted from “entering upon, passing along, interfering with, or using in any way” the washing green.

The Lord Ordinary (Fraser) on 12th January 1884 granted interdict.

The respondent reclaimed, and argued—The right conferred by the bond of servitude was a res merœ facultatis which could be lost non utendo— Gettatly v. Arrol, March 13, 1863, 1 Macph. 592. If the right conferred was a complex one, partly a servitude and partly a faculty, then even a limited exercise of the right will keep it open to the full extent—Ersk. Inst. ii. 9, 36; Stair, ii, 12, 26; Bell's Prin, sec. 999; Monro v. Mackenzie, 1760, M. 14,533; Skene v. Simpson, 1774, M. 10,746; Ilaiguesv. Halyburton, 1704, M. 10,726; Leek v. Chalmers, Feb. 3, 1859, 21 D. 408.

The complainers replied—This was a servitude right which had been lost non utendo.

At advising—

Judgment:

Lord Peesident—… The precise effect of the bond of servitude appears to me to be that, with a certain limitation to the north, Mr Baxter had power and liberty to use the strip of ground 20 feet in breadth as a “road or entry for carts, carriages, and others” to his property, and that he was further empowered to open up a passage or entry, not more than 10 feet wide, in the dyke. This was the dyke over which the servitude of rearing fruit-trees was reserved. It appears to me that this provision in favour of Mr Baxter enabled him to use the space 20 feet in breadth as an entry to his property whether the same was made into a street or not. There is no restriction as to the time within which the privilege is to be exercised. No street had then been formed on that space, and when Idvies Street was formed, it was only to a certain point, whilst the

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space to the south remained enclosed. I think that the privilege in favour of Mr Baxter extends to the southmost point, that the two properties are alongside of each other, and that it is only to the north that there is any limitation. … It was maintained, however, by the complainers that the right conferred by the bond of servitude was one which might be lost by the negative prescription, and that it had been so lost, since the constitution of the servitude was in 1825, and the right conferred was only exercised the other day. Now, if under the bond of servitude the right conferred on Mr Stewart had been a right of access by an existing road or street, and if that right was not exercised for forty years, then this plea would probably have been well founded, and the negative prescription would apply. But that is not the nature of the right; it is one of a different description. No doubt a right of access is given, but it is plainly in contemplation that it is a right which is not to be immediately exercised. Then other things have to be done, and when the necessity arises for an access from the east to the west side, then the privilege is to be exercised. The first thing the respondent required to do was to demolish the dyke over which the Joint-Stock Company had their servitude right of rearing fruit-trees. Therefore, if it was by the act of demolishing the wall that access was to be obtained, then until Mr Baxter or his successors should find occasion for access from that side it was not to be expected that the privilege would be used. If they had done anything mischievously or maliciously under their right of servitude, when no advantage was to be gained, and when there might have been mischief, then probably an application for interdict might have been made in more promising circumstances. I fail to see how it can be said that such a privilege as this may be lost by the negative description. It falls clearly under the description of a res merœ facilitates—a right which is to be used hereafter when occasion arises—which has never been held to fall under the negative prescription.

I am therefore for repelling the reasons of suspension and refusing the interdict.

Lord Mure and Lord Adam concurred.

Lord Deas and Lord Shand were absent.

The Court recalled the interlocutor of the Lord Ordinary and refused the interdict.

Counsel:

Counsel for Complamers— Scott— W. Campbell. Agents— J. & J. Galletly, S. S. C.

Counsel for Respondent—Sol.-Gen. Asher, Q.C.— J. A. Reid. Agent— J. Smith Clark, S.S.O.
1884