Scottish Court of Session Decisions

In this action, which was transferred from the Sheriff Court of Perthshire, John Laurence Reid, of Mains of Struie, Forteviot, Perthshire, sought declarator that he was heritable proprietor of a “loan” communicating between his lands and his hill pasture of Dochrie, and separating during its course the lands of Whitehill and Baulk belonging to the defenders, the trustees of the late Robert Haldane of Cloan Den, and that he was entitled to fence and renew the existing fences on either side of this loan, and to interdict against the defenders.

On 19th August 1723 Dr Robert Hay, Kirkcaldy, proprietor of the barony of Struie, feued off the barony into five portions. The charter in favour of the pursuer's author was in these terms:—“All and haill the just and equal half … of all and haill the Mains of Struie, with houses, biggings, yeards, tofts, crofts, mosses, muirs, pasturages, and haill pertinents of the same, and speciallie without prejudice to the generality foresaid with the rights, priviledges, and liberties after-mentioned, to witt, the half of the tree yeard and half of the right and priviledge of the loan leading to and from that hill belonging to the haill Mains of Struie called Douchrie, according as the said loan lies meithed and marched betwixt the lands of Whitehill and Baulk of Strowie.” Dochrie Hill was held pro indivisio. In May 1878 the pursuer acquired right to these lands with a title in the same terms as in the original charter, and in March 1888 he acquired from a Mrs vale “All and haill the pro indiviso half of that hill belonging to the haill Mains of Struie called Dochrie, with the half of the right and privilege of the loan leading to and from the said hill.”

The description in the defenders' title to Baulk, dated 1723, was as follows:—“All and haill the town and lands of Baulk of Strowie … reserving the loan belonging to the mains of Strowie, which leads to the hill of the said mains called Douchrie, all along as the said loan lies and is meithed and marched betwixt the said lands of Baulk and Whitehill of Strowie.”

The description in the defenders'-titles to Whitehill was as follows:—“All and haill the just and equal half of all and haill the town and lands of Whitehill of Strowie, with houses, &c.… and reserving the loan belonging to the mains of Strowie leading to the hill of the said mains called Dochrie, as the said loan lies and is meithed and marched betwixt the lands of Whitehill and lands of Baulk of Strowie from Powstink to the Overnook of Tamacreich Dyke, in which space the said loan is not to be cast upon by the possessors of the Mains of Strowie.”

These lands were purchased about sixty years ago, 1827–1828, by Mr Condie of Perth under separate titles. They first came to be held under one deed in 1857, when a trust-deed was granted by James Condie in favour of James and Robert Morrison, accountants, Perth; and in 1861 both properties were purchased by Robert Haldane. The defenders, as Robert Haldane's trustees, made up their title to these lands, inter alia, by notarial instrument recorded 29th November 1877. They were thus admittedly the possessors of the lands on both sides of the loan in question, which was about 600 yards long and from 20 to 60 yards

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wide. The loan also admittedly was the pursuer's only means of access from his property of the Mains of Struie to his other property, the hill of Dochrie. At the date of the action it was only fenced here and there by low peat dykes, leaving full communication between Baulk and Whitehill.

The pursuer averred—“From time immemorial, and at least for more than forty years prior to the raising of this action, the pursuer and his authors, by themselves and their tenants, had exclusive possession of said loan in property as part of the Mains of Struie and of the hill called Dochrie. The pursuer is proprietor of said loan. For a long period the tenant of Mains of Struie also held, as tenant under the pursuer and his authors, the hill called Dochrie, and the loan leading to it, but latterly the hill and loan have been let by pursuer and his authors to the tenant of Whitehill and Baulk of Struie. In particular, this was the arrangement in the case of the present tenant of Whitehill and Baulk of Struie, Mr M'Callum. He had a nineteen years' lease from pursuer's father, which expired at Martinmas 1887, but not having been warned out in time he retained the Dochrie hill and loan for another year—that is, to Martinmas 1888, and even for a number of weeks beyond that term, for which he is still due rent. Since that time the hill and loan have been in the possession of pursuer along with Mains of Struie proper.”

The defenders averred—“Explained that the defenders and their authors have, by themselves and their tenants, from time immemorial always been, and are at the present time, in possession of the loan in dispute, and have used the same for pasturage and free access and as part of their estate of Baulk and Whitehill of Struie, subject to and concurrently with the use of the said loan by the pursuer or his tenants, as a means of passage between the pursuer's property of Dochrie hill and his other property on the north, which use by the pursuer or his tenants never has been, and is not at present being or proposed to be interfered with by the defenders.”

The pursuer conceded that the defenders had a servitude of road across the loan near the north end for access between Whitehill and Baulk of Struie, and the servitude was reserved in the conclusions of the summons.

The pursuer pleaded—“(1) Pursuer being proprietor of the loan in question, but the defenders contesting his right, he is entitled to declarator in terms of the prayer of the petition, subject to the defenders' servitude right of road across the loan. (5) The pursuer and his authors having had exclusive possession in property for the prescriptive period of the said loan as part and pertinent of Mains of Struie, all as condescended on, decree ought to be pronounced in terms of the conclusions of the action.”

The defenders pleaded—“(3) On a sound construction of the titles the pursuer is not entitled to decree as concluded for. (4) The said loan being the property of the defenders, and the pursuer having only the right and privilege of using the same as a passage between his said properties, the defenders should be assoilzied. (5) The pursuer having no right in or to the said loan, except that of using it as a means of passage between his said properties, has no right to interfere with the state of possession of the said loan by the defenders, as the same has subsisted from time immemorial, or to exclude the defenders from the said loan, or to fence the same, and has no right to the interdict craved.”

After the record was closed in the Sheriff Court the process was transmitted in October 1889 to the Court of Session. The Lord Ordinary ( Kyllachy) allowed a proof, the result of which is fully stated in his opinion.

Upon 20th March 1890 the Lord Ordinary assoilzied the defenders from the conclusions of the action.

“ Opinion.—… I cannot say that the recent proof throws much or indeed any material light upon the question in dispute. It was allowed because parties were at issue as to the possession, which it was thought might go some way towards construing the titles, and might also affect the question as to the pursuer's right to fence the loan, which right he maintains, even on the assumption that his interest in the loan is only one of servitude. The result, however, has been that the possession, so far back as the evidence goes, appears to have been quite consistent with the contention of either party; while, with respect to the fences, the pursuer has certainly failed to prove any practice of fencing the loan such as would justify his proposed operations, supposing him to fail in his claim to the property. And indeed this result of the proof was almost inevitable, because it appears that from 1845 till quite lately the whole lands in question—both those of the pursuer and those of the defenders—were occupied together by the same tenants; while prior to 1845 the evidence is not only extremely meagre, but relates to a period when the whole country, being more or less open, little attention was paid to such questions as those at issue.

The question therefore must be determined upon the titles of the parties, which titles have been produced, and so far as material have been printed in a joint print—[ His Lordship narrated the history of the properties and their respective titles as above stated].

What has to be decided is, whether upon the just construction of these titles the property of the loan is with (1) the pursuer; or (2) the defenders; or (3) the superior. The pursuer of course requires to establish that it is with him. It is enough for the defenders on the other hand that the property is either with them or was not given off at all, but was reserved (intentionally or unintentionally) by the superior.

I am unable to hold that the pursuer's title even when construed by the aid of the defenders' title, establishes his alleged right of property. Prima facie a grant of a right and privilege of way or passage implies servitude and not property, and in this

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view it is not material whether a right of ‘loan’ is a mere right of passage or a right of passage plus pasturage. In either case the grant is a grant of a right and privilege, and it would require in my opinion very cogent grounds of construction to justify the conclusion that a right of property was conveyed by that expression. I do not say that such a construction is impossible; but in the first place I find nothing in the pursuer's title which at all helps such a construction. The purpose in view is quite satisfied by a grant of servitude. There seems no reason why, if a grant of property was intended, it should not have been expressed. And, on the other hand, the pursuer's argument on the application of the words ‘right and privilege’ to the half of the ‘tree yeard’ seems much too remote and conjectural, at all events in the absence of information as to what the tree yeard was, and what was the nature of the right to it which the superior possessed. Altogether, if the question had to be decided on the pursuer's own title, I hardly think there could be room for doubt. The pursuer's case really rests on an appeal to the terms of the defenders' title, and assuming such an appeal to be competent (which for purposes of construction it probably is), the defenders' title appears to me to do no more at best than raise a difficulty. It is no doubt in the pursuer's favour that the reservation of the loan is not expressed as the reservation of a servitude, but as the reservation of the loan itself, and of the loan as a subject belonging to Struie, and lying be-twixt the lands of Baulk and Whitehill. It is also in the pursuer's favour that at least in the Whitehill title there is an exclusion of the right of the possessors of Struie to cast (i.e., I suppose, to cast peat) on a certain part of the loan. But this last clause is at least extremely obscure, and with respect to terms of the reservation itself, it seems to me that the defenders have at least two answers to the pursuer's argument. In the first place, the language may probably be more suggestive of a reservation of property than of servitude, but making allowance for looseness of expression, it is, I think, quite consistent with, and quite satisfied by, the hypothesis of servitude. In the second place, if that be held otherwise, and the reservation be construed as a reservation of a right of property, I do not see how anything else follows than that the right of property so reserved is still in the superior. Ex hypothesi he has in a question with the defenders reserved the property in express terms, but ex hypothesi also, he has in terms not less express confined the pursuer to a servitude. There is, in short, no more reason for construing the pursuer's title favourably to him by the help of the defenders' title than for construing the defenders' title favourably to them by the help of the pursuer's title. In other words, as I have already said, the defenders' title, if appealed to, raises a difficulty, but does no more.

I therefore decide the case on the titles and in favour of the defenders. And I have only to explain in conclusion that after the proof was closed and the case was awaiting discussion, the pursuer proposed by minute to reopen the proof, and to produce and lead evidence about a certain old plan which was said to have been accidentally discovered after the proof was closed. For reasons which I stated at the time I did not consider that I was at liberty to allow this. I did not consider that the case was different from that of the discovery by a party after proof was closed of a new witness or a new piece of evidence, and I was, moreover, not satisfied that the discovery, although so far accidental, was not capable of having been made sooner. Similarly, I refused at a later stage to order production of a copy of the same plan which was said to be in the possession of the defenders. It is said that the pursuer had a diligence which covered this plan, and that the defenders were not cited to produce it under the diligence only because it was understood that a full production was to be made voluntarily. But the parties, or those representing them, were at issue about the facts, and in these circumstances I did not feel at liberty to go into the matter after the proof was closed. I may say that, so far as I could gather, neither the plan nor the copy would have materially affected my judgment, but I cannot at the same time say that their bearing was altogether unimportant.”

The pursuer reclaimed. After hearing counsel, the Second Division ordered further proof, which was accordingly taken, and the plan referred to in the Lord Ordinary's interlocutor was produced. The result appears in the Lord Justice-Clerk's opinion.

The reclaimer argued—On the titles it was plain that the property of the loan was in the pursuer. No doubt the words “right and privilege” were not commonly used in conveying property, but they were sufficiently explicit when taken in connection with the use which had undoubtedly been made of the loan by the pursuer. In the defenders' titles the loan was expressly reserved, so that there could be no right of property to them, and as the original proprietor, Dr Hay, had given off the whole barony, he must be held to have divested himself of the property of this loan, and given it to the person in whose title there was said to be a right to the subject— Duke of Hamilton v. Dunlop, May 13, 1885, 10 App. Cas. 813, 12 R. (H. of L.) 65. As regarded the question of further proof, the pursuer was entitled to the benefit of any proof he could produce if he showed that it was not known to him at the time the proof was ordered, and was therefore omitted— Bannerman v. Scott, November 24, 1846, 9 D. 163.

The respondents argued—As regarded the extra proof desired, the only purpose was to bring forward an old plan, which the pursuer said he had discovered since the proof was taken. It was not competent to bring it forward now, and it could not be evidence of the titles of either party.

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Although the question had not been actually decided, the opinions of the Judges were against admitting such a plan as evidence— Place v. Earl of Breadalbane, July 17, 1874, 1 R. 1202. On the titles, the defenders contended that the words “right and privilege” in the pursuer's title did not convey any right of property in the loaning to the pursuer; all that was given was a servitude right, and that the defenders were willing to allow. It was settled law that a right of loaning was a servitude right— Chatto v. Lockhart, March 5, 1790, Hume, 734 ( voce note at end of report); Ersk. ii. 9, 12; Malcolm v. Loyd, February 4, 1886, 13 R. 513. When Dr Hay feued off the barony, therefore, he only gave the pursuer a servitude right over the loaning, and it could not be regarded as property— Dyce v. Lady James Hay, July 10, 1849, 11 D. 1266; Graham v. Duke of Hamilton, July 5, 1869, 7 Macph. 976— rev. July 28, 1871, 9 Macph. (H. of L.) 98. The words “meithed and marched” in the titles referred to the boundaries of the loan, and not to the boundaries of the lands. If the pursuer was allowed to put up fences, as he claimed in his summons, the defenders would be cut off from their proper possession in the loan— Hagart v. Fyfe, November 15, 1870, 9 Macph. 127; Irvine v. Robertson, January 18, 1873, 11 Macph. 298.

At advising—