Scottish Court of Session Decisions

James Cronin, spirit merchant, Bridge Street, Alexandria, raised an action in the Sheriff Court of Dumbarton against the Kirk—Session of the Alexandria Free Church, in which he sought to have the defenders interdicted “by themselves or their factor or servants, or others acting for them or with their leave, from using the road or passage leading from John Street, Alexandria, through the pursuer's property … as an egress from their (the defenders') property, situated immediately to the south-south-west of that of the pursuer, for carts or other vehicles containing or conveying the contents of the privy and ashpit, or of either of them, connected with said property belonging to the defenders, or from using said road or passage in any way whatever as a means of conveying the contents of said privy and ashpit, or either of them, from the defenders' said property.”

The pursuer averred that the properties of both himself and the defenders consisted of tenement houses, with privy and ashpit accommodation erected on the ground behind. By deed dated 28th January 1881 the following servitude was created over the pursuer's property in favour of that of the defenders—“The heritable and irredeemable servitude right and tolerance of free entry, road, and passage through, over, and upon the servient tenement, and that as and for an access to the dominant tenement: But declaring that the said servitude of passage shall be limited to the use thereof by carts drawn by horses and laden with fuel or manure allenarly for the use of the possessors of the dominant tenement, and that by a passage or road of 9 feet in width at the back of and near to the houses built on the line of Bridge Street, on the servient tenement, and extending said passage or road from the street on the east-south-east of said tenement to the dominant tenement.”

He further averred that he acquired the property in September 1889, and since that date, notwithstanding his remonstrances the defenders had from time to time made use of the road or passage as an egress for conveying from their property by carts and other vehicles the contents of the ashpit and privy erected on the dominant tenement, and that notwithstanding they had other means of egress through their own property.

The pursuer pleaded—“(1) The defenders having no right to use said road or passage as a means of egress from their said property for carts or other vehicles containing the contents of the said privy and ashpit, or either of them, erected upon the said dominant tenement, the pursuer is entitled to interdict as craved, with expenses.”

Page: 161↓

The defenders admitted the pursuer's averments, and further stated that ever since the constitution of the servitude they and their predecessors had regularly used it for an egress for conveying from their property the material complained of.

They pleaded—“(1) The averments of the pursuer, so far as relevant, are insufficient to support the conclusions of the action. (2) The defenders having, in virtue of the bond of servitude libelled, right to use the road or passage in the way complained of, ought to be assoilzied, with expenses. (4) The remedy sought is an incompetent remedy.”

On 27th January 1899 the Sheriff-Substitute ( Gebbie) pronounced the following interlocutor—“Sustains the first and fourth pleas-in-law stated for the defenders: Assoilzies them from the conclusions of the action as laid, and finds the pursuer liable in expenses.”

Note.—“I am inclined to hold this action irrelevant and incompetent. In 1871 the then owner of the pursuer's property created a servitude over it in terms of the recorded bond in favour of the defenders' property. The servitude consists of a right of passage over a road 9 feet wide on the pursuer's property, for carts with fuel and manure to the defender's property. The petitioner acquired the servient tenement in 1889, and he avers that the defenders have ever since then used the road not only for carting fuel and manure into the property but for carting fulzie out from it, and he now objects to its being used as an egress for that salutary purpose. The defenders admit they have made such use of the road not only since 1889 but since the date of the bond, and that not being specifically denied may fairly be assumed as true. In a process for interdict it is possession alone that be dealt with, and in view of the admitted state of possession here, interdict does not appear to be the proper remedy. Interdict will not be granted adversely to the admitted possession on a mere allegation that the possession has been illegal. The proper remedy is by declarator—Rankine on Land Ownership, p. 13, and authorities there cited.”

The pursuer appealed to the Sheriff, who upon 28th March 1899 pronounced the following interlocutor—“Recals the interlocutor of the Sheriff-Substitute of 27th January 1899 complained of: Sustains the second plea-in-law stated for the defenders: Assoilzies them from the conclusions of the action, and decerns: Finds the pursuer liable to them in their expenses of the cause and of this appeal.”

The pursuer appealed to the Court of Session. When the case came up for discussion Lord Trayner asked for argument on the question whether interdict was a competent remedy in the circumstances of the present case? He said that he was inclined to agree with the Sheriff-Substitute that the pursuer's proper remedy was an action of declarator, the primary purpose of an action of interdict being to maintain possession, while here interdict appeared to be asked in order to invert possession. Counsel for the defender then waived any objection they might have taken to the competency of the action, and parties agreed to take the case on the footing that the only question to be decided was, whether the deed of servitude conferred on the defenders the right of use claimed by them. To this the Court consented.

Argued for pursuer—A right of servitude must be construed strictly, but in the present case the Sheriff had strained the meaning of the words, confusing the right out of all recognition. The primary object of the servitude was access—access for the purpose of conveying “fuel and manure allenarly for the use of the possessors of the dominant tenement.” The only rational and intelligent meaning of these words was that the defenders were entitled to use this passage for conveying fuel to their house and manure required for cultivating their gardens. This necessarily involved that the carts after being emptied would require to use the passage for egress; but to contend successfully that the defenders were entitled under the terms of the servitude to remove by this passage the contents of privies or ashpits was out of the question.

Argued for defenders—Getting “access” to a place involved both going to it and coming from it, and the words “for the use of the proprietors of the dominant tenement” which qualified the servitude of passage meant “for the convenience of the proprietors of the dominant tenement.” The contents of ashpit and privy fell under the term “manure.” Under the servitude the defenders had both a right to take out as well as bring in; and they contended that no greater burden would be imposed upon the dominant tenement if the Court upheld their view of the right conferred upon them.