Scottish Court of Session Decisions

By disposition dated 1st and recorded 15th May 1879, Alexander Allan of Aros, Mull, disponed to William Lang of Glengorm certain parts of the estate of Aros called Arrois and Kilmalen. This disposition contained a clause in the following terms: “Declaring that I and my heirs and successors or assignees shall have a right of ingress and egress to and from my other lands by the existing road through the lands hereby disponed, and that the expense of the repair and upkeep thereof shall be borne by my said disponee and me and my foresaids mutually.” This declaration was not however constituted a real burden on the subjects. Thereafter William Lang granted various bonds and dispositions in security over the lands. The bondholders sold the lands by public roup on 15th December 1897 to Dugald Cameron MacLachlan and granted him a disposition dated in January and February and recorded 12th March 1898. The obligation as regards the expense of repairing and upkeeping the road did not appear and was not referred to in the disposition to MacLachlan.

In December 1897, Allan, on the ground that the road had fallen into disrepair, requested MacLachlan to concur with him in having the road put into repair. MacLachlan maintained that he was not bound to co-operate with Allan in having the road put into a better state of repair. The parties being unable to come to any arrangement, Allan raised against MacLachlan in the Sheriff Court at Oban an action for decree authorising the pursuer to execute all repairs necessary upon the road in question, and to put the road into a state of thorough repair, the work to be executed, should the defender so require, at the sight of a man of skill to be appointed by the Court, and thereafter, upon completion of the said necessary repairs, to ordain the defender to pay to the pursuer £100, or such other sum as should be ascertained to be one-half of the cost of the repairs.

The pursuer pleaded—“(1) The defender is, in terms of the title upon which he holds his said property, liable in one-half of the cost of repairing the said road. (2) The said road being in a state of disrepair, the pursuer is, in the circumstances condescended on, entitled to have decree as craved, authorising him to proceed with the necessary repairs at the joint expense of the parties.”

The defender averred “that the road in question belongs to the defender. He is the sole judge of what, if any, repairs should be executed upon it. Neither in his title nor otherwise has the pursuer any right in or control over said road except a right of ingress and egress.”

He pleaded—“(1) The action is irrelevant. (2) It is incompetent to authorise the pursuer at the defender's expense to execute repairs upon a road belonging to the defender. (3) The defender being owner of the road in question, and his title containing no clause authorising the pursuer to execute any operations thereon, the present action ought to be dismissed. (4) The defender being the judge of what, if any,

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repairs are necessary upon the road in question, the action is incompetent.”

On 21st September 1898 the Sheriff-Substitute ( MacLachlan) pronounced the following interlocutor:—“Repels the whole pleas-in-law for the defender: Finds it admitted that the road in question … is not in a proper state of repair, and remits to George Wolfe Brenan, C.E., Oban, to inspect said road, and report as to what repairs are necessary upon said road to make it suitable for the pursuer's requirements as an access to and for the use of his said lands and farm of Lettermore, and to report quam primum.”

The defender appealed, but on 25th October 1898 the Sheriff ( Ferguson) refused the appeal.

Mr Brenan in his report, as approved of by the Sheriff-Substitute on 27th January 1899, considered necessary the following work:—“(1) Clean 877 roods of side drains. (2) Cut 2166 roods of new side drains in peat, soil, or gravel. (3) Cut 75 roods of new side drains in rock. (4) Open up, clean, re-cover, and make up bottoming and surface over nine cross drains. (5) Open up road and build new cross drains, and re-fill and re-form new surface thereon 290 lineal feet. (6) Laying track and cover 15 yards 4 inches spigot and faucet earthenware pipes 2 feet below surface across gate openings. (7) Repair faces of existing stream culverts in different situations, 21 square yards. (8) Rebuild with new dressed stones part of face wall of large culvert at 62 chains 10 square yards. … (11) Re-fill bottoming in wheel ruts, 8633 lineal yards. (12) Metal surface of road with local quarried rock broken down in situ to proper size, and sorted and sized and evenly laid to an average of 4 inches thick, picking sides near verges before laying, 14,360 square yards.”

On 12th April the Sheriff authorised the pursuer to accept the offer of Michael M'Kinney, road contractor, to execute the repairs in terms of Mr Brenan's report for £243, 7s. 7d. and ordained the defender, on completion of the work to the satisfaction of the Court, to pay the pursuer £121, 13s. 9 1 2d., or such other less sum as should be one-half of the sum actually expended on the repairs.

On 16th October 1899 the Sheriff-Substitute found that the repairs to the road were completed, and decerned against the defender for payment of £121, 13s. 9 1 2d., being one-half of original contract price to which the cost was limited by the Sheriff's interlocutor of 12th April.

The defender appealed, and argued—There was no obligation to contribute to the cost of repairing this road imposed on him by his title. The obligations in the original disposition to Lang had not been transmitted to him. An obligation to uphold a road was not a known servitude— Nicolson v. Melvill, Feb. 19, 1708, M. 14, 516—and would not transmit against singular successors unless it was declared a real burden in the titles. If this obligation had been declared a real burden it would have been binding on him— Tennant v. Napier Smith's Trustees, May 31, 1888, 15 R. 671. But not having been constituted a real burden, it was merely a personal obligation binding on Lang, but not transmitted to the defender. Even if it were held to have been transmitted, it would not bear the construction that the pursuer put upon it. The true meaning was that if the defender thought it necessary that the road should he repaired, and did repair it, he was to be entitled to recover half of the cost from the disponer and his successors. In any event, the work done in terms of Mr Brenan's report was not repair at all. It was making a new road—changing this private farm road in a remote part of the Highlands into a modern highway with all the latest improvements. The defender could not be asked to pay for such work under an obligation to repair.

Argued for pursuer—The repair of the road was part of the servitude right constituted by the titles. It was an incident of the servitude, and the obligation passed as such to the defender without the necessity of making it a real burden. He could not take the lands and repudiate the servitude and the obligation to repair incidental thereto. The repairs carried out were those which an experienced contractor thought necessary for the upkeep and repair of the road. The judgment of the Sheriffs should be upheld.

At advising—