Scottish Court of Session Decisions

At Whitsunday 1887 James Blair, boot and shoemaker, Woodside, near Aberdeen, bought certain subjects, numbered 120 and 122 Hadden Street, Woodside. The ground had been originally feued to AndrewBrodie, by feu-charter dated 29th December 1806. It was bounded on the south by Hadden Street, to which it fronted, and on the west by property belonging to Charles Strachan, baker, 124 Hadden Street. Prior to the date of the original feu-charter the superiors had made a pump-well on the back part of Blair's feu for the common use of their feuars in that neighbourhood, and for their convenience the feu-charter contained this reservation—“But reserving always to our said feuars and their tenants and servants free entry and issue to and from the said well by a road or passage of six feet wide and at least eight feet high to be left out upon the west end of the piece of ground hereby disponed.” Brodie, or his successors erected buildings upon the part of their feu which faced Hadden Street, but in building they left a road or passage at the west side of the feu. This passage was built over to the same depth as the house, making an entry numbered 122 Hadden Street, but on the west of the passage the building rested on the gable wall of the house built on Strachan's feu. The ground behind the buildings on Blair's feu was vacant and not built upon.

For many years the boundary between Blair's and Strachan's property consisted of the east gable of the house built on Strachan's feu and of a wall or dyke extending northwards from said gable, and forming the wall of a bakehouse, stables, &c., used by Strachan and his predecessors. This wall was built wholly in Strachan's feu, and Strachan and his predecessors had made four openings in it for their own convenience, the first counting from the street, under the covered passage, as an entrance to the dwelling-house fronting Hadden Street, and the other three to the different offices situated behind the dwelling-house.

When Blair bought in his property in 1887 he disputed Strachan's right to use the passage as he was doing, and both parties raised actions of interdict in the Sheriff Court, and upon 13th April 1888 the actions were conjoined. In the action at Strachan's instance the Sheriff found it proved that for more than forty years Strachan had had the use of the passage as an access to his dwelling-house and stable by the openings 1st and 4th from Hadden Street, and interdicted Blair from shutting up or interfering with said openings; and in the action at Blair's instance

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he interdicted Strachan from using the passage as an access to his bakehouse and coal-cellar. The cases were thereafter appealed to the Court of Session, and upon 11th March 1890 the Second Division pronounced this interlocutor:—“The Lords having heard counsel for the parties in the appeal, allow James Blair to amend the prayer of his petition, and in order thereto open up the record; the same having been amended accordingly, of new close the record: Find that the close or passage mentioned in the petition belongs to the said James Blair, and that the respondent Charles Strachan has no right thereto other than a right of access thereby to his dwelling-house by the opening No. 1 counting from the street, and to the pumpwell at the foot of the said passage: Therefore recal the interlocutor of the Sheriff and Sheriff-Substitute appealed against, and in the petition at the instance of James Blair grant interdict in terms of the prayer thereof as amended: Dismiss the petition at the instance of the said Charles Strachan,” &c.

Strachan still continued to assert a right to use the opening in the wall furthest from Hadden Street as an access to the road leading to the well, and upon 4th April 1892 Blair brought an action against Strachan to have it declared that he was entitled to erect upon his property “at the west boundary thereof, and where it adjoins the property of the defender, a fence or boundary wall between his said feu and the property of the defender, but so as not to obstruct the door or entry to the back part of the defender's dwelling-house No. 124 Hadden Street, Woodside, and provided always a road or passage of 6 feet wide is left out in the west end of pursuer's feu as an access to the pumpwell in the back part of the said feu, in terms of a provision in said feu-charter,” and to interdict the defender from preventing his doing so.

The result of building the proposed wall would have been to move the servitude road to the well to the east to an extent equal to the breadth of the proposed wall, and to prevent the defender having access to the servitude road except from Hadden Street or by the door opening from his dwelling-house, being that called opening No. 1 in the interlocutor of the Second Division above quoted.

The pursuer pleaded—“(1) The defender having unwarrantably interfered and persisted in interfering with the pursuer's rights of property as condescended on, the pursuer is entitled to decree of declarator and interdict, and for expenses in terms of the conclusions of the summons.”

The defender pleaded—“(5) On a sound construction of the pursuer's title, the pursuer is not entitled to erect a wall so as to exclude the defender from access or passage to said well.”

Upon 10th November 1893 the Lord Ordinary ( Kyllachy) after proof pronounced this interlocutor Finds, decerns, and declares, in terms of the declaratory conclusion of the summons, and interdicts, prohibits, and discharges in terms of the conclusion for interdict.”

“ Opinion.—“The pursuer in this case is the owner of certain house property which lies on the east side of a close in the village of Woodside near Aberdeen. He is also proprietor of the solum of the close. The defender is the owner of the corresponding property on the other side of the close. The question in dispute substantially is, whether the pursuer is entitled to build a wall or fence along the defender's side of the close; and in particular, to build up an opening, known in the proof as opening No. 4, which at present affords direct communication between the lower part of the close and the lower part of the defender's premises?

The pursuer does not dispute that the defender has a right of passage down the close to a (now disused) pumpwell, which is situated at its foot. But he denies that this implies a right of access into the close from all parts of the defender's property. He maintains, on the contrary, that the defender's servitude is confined to a right of passage down the close from the public street, and also from a certain door close to the street, which has been described in the proof as entrance No. 1

There can, I think, be no doubt that if the matter stood upon the title of the parties the defenders would be out of Court. Both parties derive their rights from a common superior, and the only servitude affecting the pursuer's property which—as I have said, includes the space now forming the close—is thus expressed in the pursuer's title—‘But reserving always to our said feuars and their tenants and servants free entry and issue to and from the said well by a road or passage of 6 feet wide and at least 8 feet high, to be left out upon the west end of the piece of ground hereby disponed.’

It seems plain upon the construction of this clause that at the date of the grant the defender's author had no higher right than the other feuars round about; and that so long as a passage was left to the well of the prescribed width and height, the pursuer's author might, if he had so desired, have built a wall on the extremity of his ground all the way down the close. Indeed, the reference to the height of the close shows that what the title had in view was a covered close passing under and through the pursuer's houses.

It appears, however, to have been decided, or at least conceded, in a previous litigation between the parties, that the defender, besides the common access from the street, was entitled to a special access to the close by a door or opening in his buildings, which I have called the entrance No. 1. And to this extent it is not disputed that the defender is now at least in a different position from the other feuars. But the defender maintains that he has acquired, by prescriptive use, a right of access to the well through a second opening or entrance half-way down the close, viz., the opening which has been described as entrance No. 4; and what I have to decide

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in this case is, whether he has made good this contention. The facts have been ascertained by a proof, which, after a discussion in the Procedure Roll, I allowed before answer, and which has extended to a length which I am afraid is rather out of proportion to the value of the subject.

I am of opinion on the whole matter that the defender has failed to make good his point.

I am, in the first place, inclined to doubt whether the alleged right of access into the lower part of the close is consistent with the judgment of the Court pronounced between the parties in the conjoined actions between them which in the year 1889 came up on appeal from the Sheriff Court of Aberdeenshire. The main question there was whether the defender was entitled to use the close as an access not to the well but to his premises, and it was held that he was not, except as regards the door or entrance No. 1, close to the street. But the opening No. 4, now specially in question, was also before the Court in those actions, and the defender in this action sought interdict against the pursuer closing it up. Moreover, the Sheriff-Principal, in his interlocutor, granted that interdict. In these circumstances it is certainly a serious difficulty in the defender's way that the Second Division of the Court recalled the Sheriff's interlocutor and ‘dismissed’ the defender's action. No doubt they also pronounced a finding that the defender was entitled to ‘access to his premises by the entrance No. 1, and to the pumpwell at the foot of the passage,’ but this was not at all inconsistent with a recognition of the pursuer's right to build his proposed wall and close up all the entrances except the entrance No. 1. And altogether, had the petition been ‘refused’ instead of ‘dismissed,’ I should, I confess, have hesitated in allowing the present action to proceed. As it is, however, I am unwilling to rest my judgment on this ground, partly because, whether intended or not, there is certainly a difference between dismissal and refusal, and partly also because, read literally, the dismissal, if equivalent to a refusal, would imply (contrary to the findings in the interlocutor) an adverse judgment with respect to entrance No. 1. I must repeat, however, that I think this whole point is somewhat doubtful, and if I were otherwise in the defender's favour it would require further consideration.

Further, I am, in the next place, disposed to doubt whether in point of law any amount of prescriptive use can extend the exercise of a servitude constituted by grant beyond what is reasonably necessary to satisfy the terms of the grant. The exercise of a servitude may, I take it, always be regulated so as to make it as little burdensome as possible to the servient tenement. For example, a right of servitude, say over a field, may be confined to a single line, although for forty years it has followed several lines to the same point. And if this is so when, as generally happens, the grant is only presumed from possession, the principle would seem to imply a fortiori where, as here, the grant is in writing and its terms are ascertained.

But passing from these considerations, it is at least plainly necessary, with respect to any claim rested on prescriptive possession, that the possession shall have the characteristics of possession as matter of right. In other words, the possession must be such as to be reasonably presumptive of a grant. If the circumstances point to mere tolerance, continued simply because there was no sufficient interest to interfere, no amount of possession will set up a prescriptive right. And such, in my view of the evidence, is the case here.

I do not propose to discuss the evidence in detail. There is some conflict of testimony as to the date when the opening (No. 4) now particularly in question was first made in the defender's fence. The weight of the evidence, I think, is that it does not date further back than about the year 1866 and that up to that date the only opening (other than No. 1) from the close into the defender's premises was at the bottom of the close, within a few feet of the pumpwell. It appears, moreover, that that opening (the position of which is still indicated by a mark in the wall or dyke) was used mainly as an access for washing purposes to the old canal, and was so used, not so much by the defender's authors, as by the neighbours generally. But however that may be, it is certain that up till recently the whole west side of the close was, so far as the pursuer or his authors were concerned, quite open. Any erections on that side were on the defender's property, and whatever may have been the actual openings, the defender or his authors had in fact access to the close along its whole length. The reason no doubt was that the pursuer did not, until recently, desire to fence in his property, and so long as he did not do so it was of no consequence to him by what route the defender or his authors found access to the well. Now, this does not appear to me to be a state of facts suggestive of an implied grant of a new access to the close by the opening No. 4.

Moreover, regard must be had to the purposes for which these openings through the defender's fence into the defender's premises were allowed to be used. They were not used merely, or even mainly, as accesses to the well. They were used, in the first place, as an access to the canal, and in the next place they were used as an access for general purposes to the background, stables, and outhouses on the defender's premises. Now, those uses were not and could not have been as matter of right. That has been already decided. I mean in the former action between the parties. And that being so, I confess I cannot see how, when the main and primary use must be ascribed to tolerance, the subordinate, and I rather think inconsiderable use, viz., that in connection with this pumpwell, can be ascribed to right.

On the whole, I see no reason in law why the pursuer should not, if he chooses, build a wall along the extremity of his

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property so long as he leaves on his own side a close 6 feet wide and 8 feet high by which the defender and other feuars may have access to the well. I shall therefore pronounce an interlocutor finding and declaring in terms of the summons, with expenses.”

The defender reclaimed, and argued—It was admitted that the question of use did not arise now; the case must be taken as if the defender's only use had been from the street entrance of the close, and the question of right arose solely upon the reservation in the pursuer's feu-charter. The charter provided that the servitude road was to be “left out upon the west end” of the pursuer's property, i.e., the whole of the property was to be at his entire disposal except a strip of ground 6 feet broad at the west edge of his ground. The pursuer could not grant another servitude road for the one presently in use, although the deviation might be slight, because the specific passage was defined and limited by the contract— -Hill v. Maclaren, July 19, 1879, 6 R. 1363.

The pursuer argued—The defender's claim if admitted would prevent the pursuer using his own property in the way he thought best, and in which he was entitled by the feu-charter to use it. The charter provided that if he wished he could build over the whole length of this road if he left a passage 6 feet broad and 8 feet high at the west. In order to support his archway he must build a wall at the end of his ground to support it, but the defender wished to prevent him doing so. This case did not fall under Hill v. Maclaren, because here there was not a specific and defined road laid down; it was only to be a road at the west side of his feu which would enable the defender and other feuars, because the reservation was in favour of all the feuars, to get to the well. As the line of road was not specifically laid down, the pursuer was entitled to alter it under judicial sanction and give the defender an equally good one, and it was not denied that the new road was as good as the old one, the only difference being that the defender would not be able to enter it from any point he pleased— Bruce v. Wardlaw, 1748, M. 14, 525; Ross v. Ross, 1751, M. 14, 531.

At advising—