Scottish Court of Session Decisions

In 1854 the trustees of Sir William Baillie of Polkemmet, proprietor of the estate of Blochairn, feued a plot of ground to certain vassals, under the following declaration and provision—“that the said first party (viz., the superior) or their foresaids shall be entitled, at any time hereafter they may think proper, to direct and appoint that a street not exceeding 60 feet in breadth shall be made and formed, extending along the north by east and north-north-west boundaries of the said plot or area of ground hereby disponed, or any part thereof, with such common sewers and drains therein as they may consider proper; which street shall be formed upon such levels and of such breadth of roadway and pavements on each side thereof respectively, as the said first party or their foresaids may think fit, and the said roadway and pavement shall be made and formed in such manner and of such materials, and the said common sewers and drains shall be made and formed of such depth and width and in such manner as the said first party and their foresaids may appoint; and declaring, as it is hereby expressly provided and declared, that the said second party and their foresaids shall be bound and obliged, whenever required by the said first party or their foresaids, to level, make, form, causeway, and finish the one-half of the roadway of the said street situated next to the said plot or area of ground hereby disponed, and to make and form the pavement situated on the side thereof in the manner and of the materials foresaid, so far as extending along the said plot or area of ground hereby disponed, and at one and the same time the said first party and their foresaids shall be bound and obliged to level, make, form, and causeway and finish the other half of the roadway of the said street, and the pavement on the other side thereof, in a similar manner so far as extending along the said plot or area of ground hereby disponed.” It was also declared that the superiors should have power to make and causeway the said street, and to construct drains, and to recover one-half the expense thereof from the vassals.

In 1864 the Baillie trustees feued a plot of ground to the same vassals which would have formed part of the street provided for by the feu-contract of 1854. By the feu-contract of 1864 it was provided that the street should be constructed 60 feet further north, and it was declared that the feu-contract was granted under the declarations and provisions contained in the former one.

The Steel Company of Scotland, Limited, are now vassals under these feu-contracts.

In 1871 Baillie's trustees feued to Robert Hannay and others, as trustees for the firm of Hannay & Sons, two plots of ground lying to the north of those above mentioned, and separated from them by the proposed street.

By the feu-contract of 1871 the minerals were reserved to the superiors and

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their successors in the said lands and estate of [Blochairn], and it was provided and declared “that a street of 60 feet in breadth marked A, B, C, D on the said plan shall, so far as not already done, be made and formed, extending along the south by west and south-south-east boundary of the plot or area of ground in the first place hereby disponed, and along the south-south-east boundary of the plot or area of ground in the second place hereby disponed, with such common sewers and drains therein as the said first parties or their foresaids, including any parties who have feued or who may feu or purchase the ground on the opposite side of the said street, and the second parties or their foresaids, may consider proper, which street shall be formed of such breadth of roadway and pavements on each side thereof respectively, and the same and the said sewer and drains shall be formed on such levels, as the said first parties or their foresaids, including as aforesaid, and the second parties or their foresaids, may think fit, having regard to the continuation of the same eastward, so as conveniently to accommodate the portion of the first party's remaining lands lying on the north bank of the canal, and to the east of the ground hereby feued: … And declaring, as it is hereby expressly provided and declared, that the said second party and their foresaids shall be bound and obliged, whenever required by the said first party or their foresaids, including as aforesaid, to level, make, form, causeway, and finish the one-half of the roadway of the said street situated next to the said plots or areas of ground hereby disponed, and to make and form the pavement situated on the side thereof of the width, on the level, in the manner, and of the materials foresaid, so far as extending along the said plots or areas of ground hereby disponed: And also declaring, as it is hereby expressly provided and declared, that it shall be in the power, either of the said first parties and their foresaids, or their successors in the remaining lands of Blochairn, including any parties who have feued or purchased or may feu or purchase the ground on the opposite side of the said street, or of the second party and their foresaids, to make and form the said common sewer and drains on the levels, and of the materials and in the manner before mentioned, whenever they shall think proper so to do; and the said other party and their foresaids shall be bound and obliged to repay to the party forming the said sewer and drains, and their foresaids, the one-half of the expenses of forming the said common sewer and drains so far as extending along the said plots or areas of ground hereby disponed; and also declaring, as it is hereby expressly provided and declared, that the second party and their foresaids shall be bound and obliged, with all convenient speed after the execution of these presents, to make and form a street of 60 feet in breadth between the points marked C, E, F on the said plan, extending along the north by east, and east-north-east boundaries of the plot or area of ground in the first place hereby disponed, and along the south by west and west-south-west boundaries of the plot or area of ground in the second place hereby disponed; and as soon as the ground lying to the north of the canal and to the east of the ground in the second place hereby disponed, or any portion thereof, is feued, to make and form a street of 60 feet in breadth between the points marked E G on the said plan, and that with such common sewers and drains therein as the first and the second parties may consider proper, which street shall be formed of such breadth of roadway and pavements on each side thereof respectively, and the same and the said sewer and drain shall be formed on such levels as the first parties or their foresaids and the second parties or their foresaids may think fit, having regard to the continuation of the street E G eastward so as conveniently to accommodate the portion of the first party's remaining lands lying on the north bank of the canal, and to the east of the ground hereby feued; … and also declaring, as it is hereby expressly provided and declared, that in the event of the said first party or their successors, as proprietors of the remaining lands of Blochairn, deeming it expedient themselves to make and form the said streets and causeway the roads thereof or any of them, or any part thereof, and make and form the said pavements or any of them, or any part of such pavements, and the said common sewers or drains in the said streets marked C E F and E G, or any of them or any part thereof, which the said second party and their foresaids are hereinbefore taken bound to form and causeway and make and form respectively, in the event of the said second party and their foresaids failing to implement the foregoing obligation to form and causeway and make and form the same respectively, they shall be entitled so to do, and in that event the said second party and their foresaids shall be bound and obliged to repay to the first party and their foresaids the one-half of the expense of making, forming, and causewaying the roadway of the said street marked A B CD,… and also to repay to the first party and their foresaids the whole of the expense of making and forming and causewaying the roadways of the said streets marked CEF and EG.… Declaring that the said first party and their foresaids shall be entitled to give a right of access to and a power to use the said streets and common sewers or drains, or the portions thereof from time to time formed, as well as any other streets and common sewers or drains which may be formed by the second party and their foresaids in the plots or areas of ground hereby feued, to their feuars in the remaining parts and portions of their said lands of Blochairn, or to any other parties they may think proper,… all which reservations, burdens, conditions, provisions, restrictions, limitations, obligations, declarations, and others before written are hereby created and declared to be real conditions and qualifications of these presents, and real liens and burdens upon

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and affecting the said plots or areas of ground hereby disponed, and the houses and buildings erected or which may be erected thereon.” It was finally declared that the whole provisions and declarations in the feu-contract should be real burdens upon the ground disponed, and should be validly referred to in all future conveyances and investitures thereof.

By disposition dated May 1877 Baillie's trustees conveyed to William Stevenson and others, as trustees for themselves, the lands situated immediately to the east of the lands feued in 1871, “together with the parts, pertinents, privileges, and pendicles of the said portions of ground, their whole rights, title, and interest, present and future therein, and whole buildings and erections thereon.”

In 1890 the estates of Hannay & Sons having been sequestrated, the trustee thereon renounced in favour of Baillie's trustees, and the sole surviving partner of the firm with his concurrence made over and conveyed to them, the subjects feued in 1871 (with the exception of a portion disponed by the Hannays), “but always with and under the reservations, burdens, conditions, provisions, restrictions, limitations, obligations, declarations, and others specified” in the feu-contract of 1871. The Messrs Hannay had done nothing in the way of forming the streets.

By disposition recorded on 15th November 1890 Baillie's trustees disponed to the Steel Company of Scotland the plots of ground formerly feued to the Hannays. The disposition contained the following provision:—“Our said disponees shall, as by acceptance hereof they agree to, relieve us of all obligations undertaken by us or our predecessors as superiors of the said lands of Blochairn with regard to roads or accesses, and drains or sewers through or in the said lands and others hereinbefore disponed.” The disposition did not contain any of the declarations and provisions as to the streets which were made in the Hanneys' feu-contract. Baillie's trustees had executed a minute of consolidation of the superiority and dominium utile, which was not however recorded till the 18th of November subsequent to the date of recording of the disposition in favour of the Steel Company of Scotland.

On 7th October 1895 William Stevenson and others raised an action against the Steel Company of Scotland to have it declared that the defenders were bound forthwith to make, form, and causeway a street of 60 feet in breadth marked ABCD; that they were hound to make the streets CEF and E G, and that in the event of the defenders refusing to make such streets, the pursuers were entitled to do so, and the defenders bound to pay to the pursuers the whole expense thereof.

The pursuers founded on the feu-contract of 1871, and their own disposition of 1877, and pleaded—“(1) The defenders being, on a sound construction of their titles, bound to construct the road, &c., mentioned in the first conclusion of the summons, and the pursuers having, by virtue of their titles, right to enforce said obligation by said defenders, decree as first concluded for ought to be pronounced with expenses. (3) The defenders being, on a sound construction of their titles, bound to construct the roads mentioned in the third conclusion of the summons, and the pursuers having a right to enforce said obligation, decree ought to be pronounced in terms of the third conclusion of the summons with expenses. (4) In the event of the defenders refusing or failing to make and form said streets, &c., as concluded for, decree ought to be pronounced in terms of the fourth conclusion of the summons with expenses.”

The defenders pleaded—“(2) No title to sue. (4) The pursuers having no jus crediti, in the said feu-contract, the defenders should be assoilzied with expenses.”

On 21st May 1896 the Lord Ordinary ( Low) pronounced an interlocutor in which he sustained the second plea-in-law for the defenders, and assoilzied them from the conclusions of the summons.

Opinion.—…“In the present action the pursuers seek to have it declared that the defenders are bound to make the streets referred to in Hannays' feu-contract, or, alternatively, that the pursuers are entitled to make the streets and charge the defenders with the cost, in terms of the feu-contract in favour of the Messrs Hannay.

The first question is, whether the pursuers have a good title to sue?

I have already pointed out that the pursuers acquired their lands in 1877, and if the disposition in their favour gives them a title to enforce the obligations against the Messrs Hannay, then I assume that the subsequent renunciation of the feu by Hannays' trustee, and the disposition of the ground, without reference to the streets, to the defenders, could not prejudice the pursuers. I shall therefore consider the case as if it had arisen between the pursuers and the Messrs Hannay.

I shall first deal with the street ABC D. The clause of the contract referring to that street does not commence by laying an obligation upon the feuars to make it, but by a declaration that such a street shall be made, and a description of the character of the street. It is in this part of the clause that it is provided that the street shall be of such a breadth as to accommodate the portion of the first parties' remaining lands to the east of the ground hereby feued. That is the only reference to the ground to the east as distinguished from the other unfeued parts of the lands of Blochairn, and I think that it is not unimportant to observe that it occurs in a part of the clause which lays no obligation on the feuars.

The obligation which is subsequently laid on the feuars is expressed thus—‘The said second parties and their foresaids shall be bound and obliged, whenever required by the said first parties or their foresaids, including as aforesaid,’ to make the one-half of the street next the ground feued to them.

Now, the foresaids of the first parties

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there referred to are their successors in the lands of Blochairn, and the words ‘including as aforesaid’ mean (as shown by the context) including ‘any parties who have feued or may feu or purchase the ground on the opposite side of the street.’

The pursuers argued that two separate classes of persons were thereby empowered to enforce the obligation—(1) The successors in the lands of Blochairn (which the pursuers claim to be); and (2) The feuars on the opposite side of the proposed street. Whether the feuars on the opposite side of the street would by themselves have a title to enforce the obligation depends upon the meaning of the word ‘including.’ The defenders argued that that word must be read in its natural sense, and as signifying that the ‘foresaids’ of Baillie's trustees should mean their successors in the lands plus the feuars on the opposite side of the street. I do not think it likely that Baillie's trustees should have stipulated that the obligation should not be enforceable by them and their successors alone, but that they should require the concurrence of certain feuars. Further, I notice that in the feu-contract, which is quoted in the record, and which is conceived in practically the same terms as the feu-contract in favour of the Messrs Hannay, an obligation is laid upon ‘the first party, their foresaids,’ or the parties, ‘who have feued’ ground on the opposite side of the street. I am, therefore, inclined to think that the word ‘including’ means that the term ‘foresaids’ shall include the feuars on the opposite side of the street, and that either they or Baillie's trustees and their successors should be entitled to enforce the obligation. But that does not help the pursuers, because they are not feuars on the opposite side of the street, nor are they the successors of Baillie's trustees in the lands of Blochairn, but only in a portion thereof. No doubt they have acquired the lands lying to the east of the ground feued to the Hannays, and these are the lands which the street was to be constructed so as to accommodate, but the clause imposing this obligation cannot, in my opinion, be construed so as to limit the expression ‘foresaids’ to successors in a particular part of the lands of Blochairn. It would have been a different question if the only lands remaining in the hands of the superior had been those to the east, but that was not the case.

As regarded the street CEF, the Messrs Hannay were taken bound to make it ‘with all convenient speed after the execution of these presents.’ It was also declared that if the Messrs Hannay failed to make the street, ‘the first party, or their successors in the remaining lands of Blochairn,’ should be entitled to do so at the expense of the Messrs Hannay. What I have already said applies to this street also. The pursuers are not the successors of Baillie's trustees in the remaining lands of Blochairn.

The third street, E G, is in the same position as the street C E F, with this exception, that it is declared that it shall be made ‘so as conveniently to accommodate the portion of the first party's lands lying to the east of the ground hereby feued.’ That however can, in my opinion, make no difference to the title of the pursuers. What I have said in regard to the other streets applies equally to the street E G.

I am therefore of opinion that the defenders must be assoilzied.”

The pursuers reclaimed, and argued—(1) The right to enforce this obligation to make certain roads was communicated to the pursuers by the clause about pertinents, &c., in the disposition of 1877. (2) Alternatively, the pursuers had a jus quœsitum to enforce the contract between Baillie's trustees and the original vassal. The pursuers were successors of Baillie's trustees in the whole lands intended to be benefited. When the feu-contract of 1871 was made, a right vested in a tertius—who turned out to be the pursuers—of enforcing the obligations therein. Nothing more was required for the valid creation of such a right than that the contracting parties should intend that a tertius should have a vested right. Authorities referred to— Finnie v. Glasgow & South-Western Railway Company, August 13, 1857, 3 Macq. 177; Peadie v. Brown, Gordon & Company, June 11, 1857, 3 Macq. 65; M'Gibbon v. Rankin, January 19, 1871, 8 Macph. 423; Hislop v. M'Ritchie's Trustees, June 23, 1887, 8 R. (H. of L.) 95.

Argued for the defenders—The obligation to make streets was a condition of tenure not a real burden, and therefore the superior alone could enforce it. It could only be enforced by a third party (1) if the power to enforce were expressly conveyed, which it was not, by the disposition of 1877; (2) if the tertius were expressly described in the feu-contract imposing the obligation, which was not the case here, see Finnie, ut sup.; or (3) if the tertius undertook some reciprocal obligation. Here, while the scheme was to benefit the whole lands of Blochairn, the pursuers were not bound to do anything to further the scheme; there was no mutuality— Walker v. Dick & Park, February 29, 1888, 15 R. 477.

At advising—