Scottish Court of Session Decisions

By lease entered into between George Bayley of Manuel, Writer to the Signet, Edinburgh, on the one part (therein called the first party), and Abram Addison on the second part (therein called the second party), George Bayley let to Abram Addison the mills and farm of Manuel for a period of nineteen years from Martinmas 1892.

The following is excerpted from the lease:—“All and Whole the mills of Manuel Mill, with the kiln, water-wheels, troughs, mill-dam, and race, and use as heretofore of the water of Avon for said mill, with the fixed machinery in said mills belonging to the first party, and with the dwelling-house and office houses and two cot-houses at Burnbridge, all as now let to Peter Roberts, and together also with those lands now let to him and to Thomas Binnie, and those other lands in possession of the first party, and heretofore let by him as grass parks, which whole lands hereby let consist of the fields or enclosures marked numbers two, three, ten, fifteen, sixteen, seventeen, twenty, twenty-two, twenty-five,

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twenty-seven, twenty-nine, and thirty-four, and intervening numbers, thirty-six, thirty-eight, thirty-nine, forty, and forty-three and fifty-six, and intervening numbers on the plan of the estate of Manuel made by James Young & Son, and dated Eighteen hundred and fifty-two, which has been seen and examined by the second party, which lands, lying in the parish of Muiravonside and county of Stirling, are computed or conjectured to extend to one hundred and twelve acres imperial or thereby, although no extent is guaranteed, and the second party shall be held to have satisfied himself as to their true extent before entering into these presents.… There is hereby reserved to the first party—( First) The cottage at Causewayend on the road adjoining the enclosure number thirty-nine on the foresaid plan; … ( Third) the right to himself and others having his permission to use all roads through said lands.… The second party binds himself and his foresaids to keep the road from the public road at the gate of the avenue to Manuel House to the mills hereby let in good repair, and leave same in that state at the termination of this lease.…”

The farm on its north-east, north, and north-west sides was bounded by a public road, which ran in a more or less semicircular form from a point A on the east to a point J on the west. There were three private roads on the farm, none of them included in the numbers let. One of these roads ran from the farm on the south in a north-easterly direction to the public road at the point A, the other in close proximity to it to the cottages at Burnbridge, which were situated close to A. A third road or farm track ran almost due east and west through the middle of the farm from point A upon the public road to point J upon the public road. This road or track was marked on the plan by the letters A, B, C, D, E, F, G, H, J. It was possible to reach every part of the farm let by means of the two private roads first mentioned, and the public road and a short section of the third road at its extreme westerly end between J and G. Many portions of the farm could, however, be more readily reached by the remaining portion of the central road between G and A.

Robert Ainslie Brown in 1903 purchased the estate of Manuel from Mr Bayley, and shortly afterwards closed the road from A to G, and prevented Addison from continuing to use it as he had hitherto done.

In the present action against Brown, Addison sought (1) declarator that he was entitled to use the road, and interdict against interference with his right; he also concluded for (2) an award of damages on account of past interference with his right.

The Lord Ordinary ( Dundas) on 8th January 1907 pronounced the following interlocutor, after proof—“Finds, declares, and decerns, in terms of the first declaratory conclusion of the summons that the pursuer has the right as tenant of the farm and lands under the lease libelled to the free and uninterrupted use of the road libelled, and rights of passage over the same for himself as tenant foresaid, his servants, employees, and others, and for horses, cattle, and carts used by the pursuer as tenant foresaid, and for all purposes connected with the said farm and lands: Decerns against the defender for payment to the pursuer of the sum of £30 sterling in full of the petitory (second) conclusion of the summons.”

Opinion.—“The proof allowed by my interlocutor of 6th July has now been led—at quite unnecessary length, in my opinion—upon both sides. I have come, without much difficulty, to the conclusion that the pursuer is entitled to decree in terms of the principal declaratory conclusion of his summons. Parts of the evidence are instructive, but it appears to me that the decision of the case must turn upon the proper construction to be put upon the pursuer's lease. The lease, which is dated 11th and 21st September 1892, is framed in singular and rather puzzling terms. It lets to the pursuer (1) the mills of Manuel Mill, with water-power, machinery, &c., and the houses ‘all as now let to Peter Roberts;’ (2) ‘those lands now let to him and to Thomas Binnie;’ and (3) ‘those other lands in possession of “the landlord” and heretofore let by him as grass parks.’ The lease continues thus—‘which whole lands hereby let consist of the fields or enclosures marked numbers’ (specified in detail) ‘on the plan of the estate of Manuel made by James Young & Son, and dated Eighteen hundred and fifty two, which has been seen and examined by the “tenant,” which lands … are computed or conjectured to extend to one hundred and twelve acres imperial or thereby, although no extent is guaranteed.’ The estate plan is No. 16 of process; Mr Carfrae's tracing of part of it, with letters imposed, is No. 6 of process; and the relative schedule of contents, dated in 1852, is No. 15 of process. Mr Carfrae, the pursuer's first witness, explains that, as shown in his table No. 97 of process, the arable and pasture lands actually leased to the pursuer extend to 112·065 acres, exclusive of scarcements, sites of fences, roads, water, wood, banks of burns, and all houses. There are only three roads of any material importance in the case. In the first place there is the road in dispute, marked on No.6 of process by the letters A to J. The bulk of this road, A to G, extending to ·861 acre, is No. 35 on the plan. No. 35 is not one of the numbers specified in the pursuer's lease. The part G to H, extending to ·101 acre, seems to be included in No. 36, which is specified in the lease. The remainder of the road, H to J, extending to ·042 acre, forms part of No. 37, which is not so specified. The second road leads from the mill to the point A on the public road. It is No. 21 on the plan, extends to ·575 acre, and is not specified in the lease. The third road leads from the mill to Burnbridge by the water side. It is No. 23 on the plan, consists of ·507 and ·74 acre (total ·581 acre), and is not specified in the lease. To complete matters I may point out that a road or way leading from the mill to the damhead

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or weir and sluices—which by the lease the pursuer is bound to keep in good order—seems to be, to the extent of ·229 acre, included in No. 10, which is specified in the lease, and to the extent of .76 acre in No. 8, which is not specified therein. If, therefore, the extent of the pursuer's leasehold were to be ascertained upon a literal construction of the words of let, it would appear that he has no access at all to his mill and steading. The defender concedes that such a construction is inadmissible, and he says that he is bound and willing to afford the pursuer such access as are ‘ways of necessity’ for the proper working of the farm. These accesses are, in the defender's view, the two roads from the mill to the public road, above described; and the portion J to G of the road in dispute. This attitude does not seem to me to be logical or satisfactory. I do not think that both of the roads indicated could be ‘ways of necessity.’ But it is, in my judgment, clear that the lease is open to construction in regard to the matter of access, and that it must be construed, as a whole, according to the reasonable meaning of its language. A very important clause occurs, whereby the landlord reserves, inter alia, ‘(Third) the right to himself and others having his permission to use all roads through said lands.’ This, I apprehend, must mean either an exclusive reservation by the landlord of all the roads or a reservation to himself in common with his tenant. The latter view is maintained by the pursuer, and is, in my judgment, the correct one. The former view I find it impossible to sustain, although no doubt the words used are susceptible of such an interpretation. The defender's counsel was constrained to admit that the reservation, in the sense in which he reads it, is superfluous; but he argued that some of the other reservations in the lease—particularly that of a cottage at Causewayend—are so also. In this I think he is mistaken. The cottage is situated in field No. 39, which is expressly let to the pursuer, and the reservation has therefore a distinct purpose and effect. Be this, however, as it may, it would, in my opinion, approach the grotesque if one were to hold, as matter of construction, that the parties to this lease intended to stipulate that the landlord should have exclusive right to use all the roads, and the tenant should have none at all. That this is not the proper construction of the language used appears to me to be confirmed by reference to another clause in the lease, by which the tenant is taken bound to keep the ground from the mills up to the point A on the plan in good repair, and leave it in that state at the termination of his lease. This is, I think, plainly an instance in which parties contemplated that the tenant should use a road—for obligation to maintain must surely imply right to use—which is not expressly let to him, and which indeed bears on the plan a number not included amongst those which are so let. The pursuer also founded upon a clause in the lease which provides that, if the tenant should desire to have additional drains ‘in the lands hereby let,’ and the landlord should be satisfied as to the expediency of such drains, the latter was to supply the drain tiles, and the former to perform the carriages and execute the drainage works at his own cost. It appears in the evidence that during the lifetime of the late Mr George Bayley the pursuer executed a considerable drainage operation upon a part of the road now in dispute, his purpose being, as the witnesses depone, to dry the road. This was done with the knowledge and approval of Mr Bayley, who supplied the drain tiles, the pursuer bearing the cost of the carriage and the labour. I think that this episode goes some way to confirm the view that the pursuer had, according to the contemplation of the parties, right to use the road as part of the subjects of his tenancy. Upon a proper construction of the lease, therefore, it is, in my opinion, matter of plain implication that the pursuer had and has right to the reasonable use of this road, as of the others upon his farm. If this view is well founded, there is an end of the matter. I may, however, say a few words as to the evidence of possession by previous tenants. The proof does not throw much direct light upon this matter, because it appears that between 1856 and the pursuer's entry in 1892 the fields lying along the road in dispute were never let to one and the same tenant. It is to be observed, however, that prior to 1856 Alexander Brock was tenant of the whole farm; his lease says nothing about roads; but there is a good deal of evidence to the effect that he was in the habit of using the road in dispute, as and when it suited him to do so, in the working of the farm. After Alexander Brock there was short tenancies by Andrew Osier and George Brock; and from 1861 to 1892 Peter Roberts had the mill: but during the whole period from 1857 to 1892 the grass parks along the road in dispute were let to separate tenants. The roup rolls are contained in Nos. 25 and 26 of process. There is some evidence to the effect that Peter Roberts was at one time lessee of fields Nos. 33 and 18 of the plan, and that he used the road in dispute in connection with them. So far as it goes the evidence as to previous possession seems to support—or at all events is quite consistent with—the pursuer's understanding of his own rights under his lease. There is, I think, sufficient evidence to show that the pursuer after his entry, and down to a period subsequent to the advent of the defender, made use of the road in dispute for various purposes and in different manners. He depones that, before he took the lease, the late Mr Bayley expressly told him that he would have the use of the road for working the farm. I have some hesitation in accepting this statement implicitly; but apart from it altogether, I consider, for the reasons which I have stated, that the pursuer had and has a right to a reasonable use of the road, and that the defender is not entitled to deprive him of it. It is satisfactory to know that the defender is not by this decision losing any right which

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he had in view in making his purchase, for he frankly states in his evidence that, before buying, the question of roads did not occur to him, and he had not considered what access the tenant had over the farm.

“In the view which I take of the case it is not necessary to decide whether or not the road between A and G on the plan is a ‘way of necessity’ in the legal sense of these words. My impression is in the negative. I think that the pursuer and his witnesses exaggerate the importance of the road as an adjunct of the farm. But it seems quite clear that, with a moderate amount of putting in order, it would at certain seasons and under certain conditions be of use and advantage to the farmer. The pursuer must, therefore, have an award of damages; but the amount must, in my judgment, be a modest one. The pursuer's own claim is, I think, a greatly exaggerated and, as regards one item of £20, an uncandid one. I consider that he will be sufficiently compensated by a sum of £30. It will be unnecessary to deal with any of the other conclusions of the summons, except that for expenses.…”

The defender reclaimed, and argued—The road in question, so far as in dispute, was not expressly included in the subjects let; it could therefore only be impliedly included if it was a way of necessity, i.e., a way without which it would be impossible to use the farm. It was not such a way, because by means of the other two private roads and the public road, and the small portion of this road, J to G, it was possible to obtain access to every portion of the farm—Erskine, ii, 6, 9; Duncan v. Scott, February 22, 1876, 3 R. (H.L.) 69; Galloway v. Cowden, January 30, 1885, 12 R. 578, 22 S.L.R. 371; Carmichael v. Penny, June 26, 1874, 10 S.L.R. 634; Cullens v. Cambusbarron Co-operative Society, Limited, November 27, 1895, 23 R. 209, 33 S.L.R. 164; Dodd v. Burchall, 1862, 31 L.J., Ex. 364; Union Lighterage Company v. London Graving Dock Company (1902), 2 Ch. 557, at 573, Where a grantee of land was entitled to a way of necessity over another piece of land belonging to the grantor, and there were more ways than one to the land of the grantee, the grantee was entitled to one way only which the grantor might select— Bolton v. Bolton, 11 Ch. D 968. Thomson v. Murdoch, May 21, 1862, 24 D. 975 was referred to.

Counsel for the respondent was not called upon.