Scottish Court of Session Decisions

This was an action, brought in the Sheriff Court at Elgin, by Jessie or Janet Grigor and Mrs Elizabeth Grigor or Shiach, being two of the four pro indiviso proprietors of a dwelling-house in the court or close, No. 179 High Street, Elgin, against Thomas Maclean, contractor in Elgin, the proprietor of a house and shop at the entrance from High Street of said court or close, and David Forsyth, mason, Elgin, conjunctly and severally.

The pursuers prayed the Court “to find and declare that the court, passage or entry in close No. 179 High Street, Elgin, extending between the property of the pursuers in said close and the High Street of Elgin, with the entry or passage leading thereto, is the common property of the pursuers, the defender Thomas Maclean and others, and for their common use and enjoyment; or otherwise, that there is a right or servitude of access by, and use of, said court, close, passage or entry in favour of the property aforesaid, situated at No 179 High Street, Elgin, belonging to the pursuers and others: That the defenders, or either of them are not entitled, without the pursuers' express consent, to build on or over the said court, close, passage or entry, or any part thereof, or to place stones, sand, lime, or rubbish on said court, close, passage or entry, or to obstruct or occupy the same in any manner of way, so as to defeat or impede the pursuers' right as aforesaid,” to interdict the defenders from doing so, “and from interfering in any way with the pursuers' right of servitude and right of ingress and egress to and from the High Street of Elgin, and the pursuers' said dwelling-house through said court, close, passage or entry, as possessed and exercised by them prior to the operations of the defenders complained of.” They also prayed for interim interdict and for decree ordaining the defenders to remove their erections and obstructions.

The craving for a declarator of common property in the passage was not insisted in.

The pursuers' title contained the following clause, “with free egress and regress to and from” their property “by the front passage from the High Street down the said close.” That clause had appeared in identical terms in all the titles since 1728.

Prior to the proceedings of the defender complained of, the passage in question had been of the following dimensions, viz.—at the entrance from the High Street, 6 feet 10 1 2 inches in width, which width continued for a distance of 17 feet 3 inches. The part of the passage nearest the High Street was built over, the height of the enclosed part being 8 feet; at a point 29 feet down the passage it was 7 feet 9 inches in width; and at a point 58 feet down it was 8 feet 3 1 2 inches in width; at the south end of the pursuers' property it was 9 feet 4 1 2 inches in width; after continuing for a few yards it narrowed to 8 feet 10 inches and remained at that width ex adverso of the pursuers' property, and at the foot of the close it narrowed to a width of 7 feet 1 inch.

The defender, by the operations complained of, had narrowed or proposed to narrow the passage at its entrance, and for some distance down, to a width of 3 feet 6 inches.

In these circumstances the pursuers' brought the present action.

The pursuers pleaded inter alia—“The pursuers and their predecessors having, by their titles, a right of ingress and egress over said close or court, and having used and enjoyed the same as it stood before the operations complained of were begun for forty years and upwards, the defenders or either of them, are not entitled to narrow or encroach on said close.”

The defender Maclean admitted that there was a servitude of foot passage to and from the pursuers' property over the close. He pleaded, inter alia—“The operations condescended on being for the substantial benefit of the defender Maclean, and not interfering with the sufficient and reasonable possession by the pursuers of their servitude of access through the property of the defender Maclean, the pursuers are not entitled to declarator and interdict as craved.”

The Sheriff-Substitute ( Rampini), by interlocutor dated 9th July 1896, in terms

Page: 63↓

of a joint-minute to that effect, dismissed the action as regards the defender Forsyth.

A proof was led, from which it appeared that from time immemorial, until the operations complained of, the passage had been of the dimensions above detailed. Evidence was led to show that prior to the operations the passage was suited, and had been used for vehicular traffic, and evidence to the contrary was led for the defender.

The Sheriff-Substitute, by interlocutor dated 22nd July 1896, after sundry findings in fact found that it was not proved that the pursuers had acquired a servitude of right-of-way over the said close for vehicular traffic or otherwise, and found in fact and in law that there had been no encroachment on or interference with the rights of the said pursuers, and therefore assoilzied the defender from the conclusions of the action. and found him entitled to his expenses according to the higher scale.”

Note.—“The pursuers' right of egress and regress to their property in this close is reserved to them by their titles. They however claim a further servitude of right-of-way, and endeavour to prove this by evidence that vehicles of various descriptions have used this close for the prescriptive period. The Sheriff-Substitute is not satisfied with the proof upon this point. Nothing like vehicular traffic, in the proper sense of the word, has ever taken place in this close; occasionally a cart of peats or coal may have been backed into it as a matter of temporary convenience to some of the residents in the close. But the proof fails to establish such a constant user of the close as would constitute the servitude claimed. The evidence led before the Sheriff-Substitute and his own inspection of the premises have satisfied him that, although a cart might be taken down this close, this could only be done at great risk to the lieges. A cart could not possibly be turned at the extremity of the close, and, on the whole, the close is not, in his opinion, adapted for vehicular traffic of any kind.”

The pursuers appealed to the Sheriff (IVORY), who by interlocutor dated 15th September 1896 dismissed the appeal and affirmed the interlocutor appealed against, adding the following note—“The Sheriff concurs in the views of the Sheriff-Substitute, and has nothing to add to the grounds of judgment stated by the latter in the interlocutor and note under review.”

The pursuers appealed to the Court of Session, and argued—The pursuers' right here was the right of egress and ingress by grant in their title. Proof of possession was not necessary to constitute the right, but only to explain its extent. The Sheriff's interlocutor had therefore proceeded upon a misapprehension of the object with which the proof was led. The question was not whether the passage was suitable, and had been used for cart traffic, but whether the passage had always been of the width contended for by the pursuers. Even for foot passage six feet was much better than three. But, moreover, it was proved that this passage had been from time immemorial of particular dimensions, defined by old houses built on either side. That showed the width of “the front passage” referred to in the title and the extent of the grant. Where there was a right of ish and entry by a particular passage in a town defined by buildings, the owner of the servient tenement was not entitled to narrow the passage, merely leaving bare room for the proprietor of the dominant tenement to pass— Ferrier v. Walker, February 11, 1832, 10 S. 317. Though no doubt that was a possessory judgment only, there were dicta by the Lord President (Hope) at page 318, and Lord Gillies at page 319, which were in favour of the pursuers' contention here. The pursuers were not concerned to dispute the right of the owner of a servient tenement to alter or divert a road in open country if a sufficient and convenient road were left or provided. But it was different when there was a specific grant of egress and regress by a particular passage defined by old buildings in a burgh. The pursuers were entitled to the use of that particular passage, and the defender was not entitled to interfere with it without their consent.

Argued for the defender—The pursuers could not be entitled to a passage of greater width than the front passage was at the date of the grant. It did not appear what its width then was. The burden of proving that its width then was not less than immediately prior to the defender's operations was upon the pursuers, and they had failed to discharge it. The expression “the front passage” in the titles defined the direction of the passage but not its width. A use for cart traffic had not been proved, and the passage was quite unsuited for that purpose, as admittedly carts could not turn in it, and there was no through passage. All that was proved here was a right of foot passage, which the defender admitted, and sufficient space had been left for the full exercise of that right. The rule of law was that in the case of a private right-of-way, all that the owner of the dominant tenement was entitled to have was a passage sufficient for the exercise of the right to which he was entitled in the manner least burdensome to the servient tenement— Thomson v. Murdoch, May 21, 1862, 24 D. 975, per Lord Curriehill at foot of page 980. The owner of the servient tenement was entitled to put gates on the road— Wood v. Robertson, March 9, 1809, F.C., which was a case of grant; to put an arch over it— Allans v. Magistrates of Rutherglen, December 18, 1801, 4 Pat. App. 269; or to alter the direction of a kirk-road if another equally commodious was provided— Bruce v. Wardlaw, June 25, 1748, M. 14,525; in short, he might make such alterations on his own property as he saw fit, provided he made arrangements for the reasonable enjoyment of the servitude. That was what had been done here. Three feet were sufficient to give free egress and regress to the pursuers for foot passage, which was all they were entitled to. The case of Ferrier v. Walker, cit., was a possessory judgment merely.