Scottish Court of Session Decisions

Robert Anderson, merchant, Princes Square, Glasgow, pursuer, broughtan action against Matthew Dickie, builder, King's Park, Glasgow, defender, for declarator that “the defender is not entitled to erect any dwelling-houses other than one dwelling-house with suitable offices on any two acres of ground, and of the value of at least £900, on any part of the ground now or formerly occupied as the lawn between the ground feued by Thomas Smith to the pursuer's author William Miller by feu-contract dated 14th, 22nd, 27th, and 30th September 1852, and the mansion—house of Eastwood Park, in the parish of Eastwood and sheriffdom of Renfrew, all as said ground is marked numbers 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, and 70 on the sketch or plan endorsed on the said feu-contract and coloured blue on the plan produced.” Conclusions for interdict followed.

The pursuer averred—… (Cond. 2) The said feu-contract in favour of William Millar, the foundation of the pursuer's title, contains the following declaration:—‘Declaring also, as it is hereby expressly provided and declared, that it shall not be lawful to me or my foresaids or the other disponers to sell or feu any part of the said ground now occupied as the lawn between the ground here by feued and the said present mansion-house of Eastwood Park, and as marked Nos. 59, 61, 62, 63, 64, 65, 66, 67, 68, 69 and 70 on the said sketch or plan endorsed hereon, excepting under the express conditions and declarations that there shall be no more than one dwelling-house with suitable offices on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming; which restriction shall also be a real burden affecting the said lands and shall operate as a servitude in favour of the said William Miller and his foresaids in all time coming.’ The statements in answer, so far as not coinciding with the pursuer's averments, are denied. (Ans. 2) The said feu-contract is referred to for its terms, beyond which no admission is made. Explained that the sketch or plan endorsed on the said feu-contract did not enter the record, and that the ground referred to in the said disposition as ‘now occupied as the lawn between the ground hereby feued and the present mansion-house of Eastwoodhill’ is not otherwise identified with precision in the said feu-contract or in the recorded titles. The area of ground occupied as lawn in connection with the mansion-house of Eastwood Park has varied from time to time, and in any event the portion of the said lawn ‘between’ the ground feued in the said feu-contract and the mansion-house of Eastwood Park is only a very small portion of the total land from time to time occupied as lawn. The mansion-house of Eastwood Park since the date of the pursuer's feu-contract has been largely added to, and the frontage of the buildings to the lawn is now more than double the frontage as at the last-mentioned date. Explained further that the clause quoted has reference only to the erection of dwelling-houses on the said ground. By antecedent clauses of the said feu-contract the said Thomas Smith was left free to erect works on the lawn ground described, other than works of such a nature as could be legally deemed a nuisance.… (Cond. 4) The disposition granted by Thomas Smith in favour of Joseph Colen Wakefield (the defender's author) contains the following declaration:—‘And with and under the declaration that it shall not be lawful to the said Joseph Colen Wakefield or his foresaids to sell or feu any part of the ground occupied as the lawn between the ground feued by me to William Miller, merchant in Glasgow, and the present mansion-house of Eastwood Park, except under the express conditions and declarations that there shall be no more than one dwelling-house with suitable offices on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming; which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of the said William Miller and his foresaids in all time coming.’… (Cond. 5) The said declarations, restrictions, burdens, and servitudes appear upon the record, and are made real burdens and servitudes upon the subjects now held by the defender in favour of the lands now held by the pursuer, and they are incorporated in and affect the defender's title to said subjects. The ground which at the date of the said feu-contract in favour of William Miller, and of the said disposition in favour of Joseph Colen Wakefield, was occupied as the lawn, comprises the whole ground between the East-wood Park mansion-house and the feu given off to the said William Miller, and is shown coloured blue on the plan produced. (Ans. 4 and 5).… Denied that the ground described as ‘occupied as the lawn’ comprises the whole ground between the East-wood Park mansion-house and the feu given off to the said William Miller, which is shown coloured blue on the plan produced by the pursuer. Explained that the clause partially quoted from the disposition to Mr Wakefield, the defender's author of 1884, has references only to ground occupied as lawn at that date. Not known and not admitted that the ground then so occupied was the same as that referred to in the feu-contract between the said Thomas Smith and William Miller in 1852 and the relative

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instrument of sasine in favour of William Miller. In the disposition to the defender's said author there is no reference to the numbered sections mentioned in article 2 of the condescendence as appearing in the said instrument of sasine, nor is there any reference to the plan therein mentioned.… The said restriction accordingly is entirely vague and indefinite, and is not binding on the defender as a singular successor.…

The defender pleaded—“(3) The operations proposed by the defender not being illegal or contrary to his titles, the pursuer is not entitled to decree in terms of the conclusions of the summons, and the defender should be assoilzied. (4) The pursuer not being entitled on a sound construction of his titles to the decree sought by him, the defender should be assoilzied with expenses.”

After a hearing in the procedure roll the Lord Ordinary ( Skerrington) on 7th February 1913 allowed a proof.

Opinion.—The pursuer is the proprietor of the mansion-house and grounds called Eastwoodhill, which extend to about 4 1 2 acres, and which form part of the lands of Eastwood Park. The defender is the proprietor of the remaining part of the lands of Eastwood Park, which consist of 62 acres with a mansion-house. Both parties derive title from a common author, and each is a singular successor of the original grantee. The pursuer's title begins with a feu-contract dated September 1852 between Thomas Smith, the common author, and William Miller. The defender's title begins with a disposition granted by the said Thomas Smith in favour of Joseph Colen Wakefield, dated and recorded in May 1864. The defender is not vested in the superiority of the pursuer's feu, and accordingly there is no privity of contract or of tenure between them.

The pursuer concludes for declarator that—[ His Lordship then quoted the declaratory conclusion of the summons]. Though the pursuer has thus adopted the feu-contract of 1852 as showing the extent of the ground subject to the alleged restriction, his counsel stated that he did not found upon this deed as creating any real burden or servitude over the property now belonging to the defender. He refused to argue that the servitude which his client seeks to enforce was one of the known servitudes which would be effectual though it did not appear in the sasine of the servient tenement. The pursuer's case is that the disposal of the ground in 1852 was the same as in 1864.

The clause in the disposition of 1864, which forms the commencement of the defender's title, is as follows:—… [ quotes, vide supra] … The later titles merely refer to the real burden specified in this disposition, and do not purport in themselves to create any real burden or servitude in favour of Miller's feu.

“The defender's counsel argued that the clause above quoted was not intended to create, and did not create, an immediate real burden affecting a portion at least of the lands which formed the subject of the conveyance. He argued that it merely stated the terms of a restriction which must be inserted in any future disposition or feu-charter which might be granted by Mr Wakefield or his successors. In short, the question between the parties is whether the declaration that the restriction ‘shall be a real burden’ was intended to take effect as from the date of the infeftment to follow on the disposition of 1864, or as from the date of the infeftment following upon some deed which might be granted in the future. I think that the former construction is the more natural and is preferable. It is apparent both from the clause above quoted and also from the remainder of the disposition that the future tense is used throughout as equivalent to the present. I accordingly reject the argument that the words of the clause are not habile to create an immediate real burden. The defender's counsel further contended that the language of the clause was so vague as to make it impossible to ascertain the exact area which was subject to the alleged restriction, and that the clause was therefore incapable of creating a real burden. I am of opinion that the pursuer is entitled to a proof for the purpose of defining if he can the extent of the ground which was occupied in 1864 ‘as the lawn between’ his feu and the defender's mansion-house. If he is unable to discharge this burden the restriction will be inoperative. On the other hand, I do not think that it is possible to apply a stricter rule to a clause creating a real burden than to a clause which described the subjects conveyed. In the latter case a parole proof is always competent for the purpose of explaining the language of the conveyance, and I see no reason why a similar rule should not apply when the purpose is to ascertain the area which is subject to a real burden. I shall accordingly allow a proof.”

On 18th June 1913 the Lord Ordinary sustained the third and fourth pleas-in-law for the defender, and assoilzied him from the conclusions of the summons.

Opinion—In the note to the interlocutor of 7th February 1913 I stated that the pursuer was entitled to a proof for the purpose of defining, if he could, the extent of the ground which was occupied in 1864 ‘as the lawn between’ the feu now belonging to the pursuer and the mansion-house of Eastwood Park now belonging to the defender. That proof has now been led, and the evidence was specially directed to the year 1864. [ His Lordship then examined the evidence, holding that the lawn mentioned in the disposition might be identified as a certain marked enclosure No. 854 on the Ordnance Survey map 1857. ]

“There remains the question whether the pursuer as a mere servitude holder has proved any legitimate interest to maintain the building restriction as affecting the area No. 854, seeing that I hold that the defender is free to build as he likes both on the area No. 889, which actually adjoins the pursuer's feu along the greater part of the western boundary, and also on the area No. 884, which lies only a short distance to the

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westward of the feu. The pursuer led no evidence to show that he had any such interest, as was only natural, seeing that the view which I have suggested did not occur to either of the parties. If the only purpose and effect of the restriction had been to secure air, light, and prospect by limiting the number of buildings in the vicinity of the feu, I might have been entitled without special evidence to that effect to draw the inference that the restriction was of some value to the feu, even if it affected only the enclosure No. 854 as contrasted with the whole area claimed by the pursuer. But it is an integral part of the restriction that the dwelling-houses shall be of a certain pecuniary value, and also (as I construe it) that each building lot shall contain two acres—the evident object being to secure a superior class of dwelling-houses in the vicinity of the feu. I cannot assume without evidence that such a restriction would be of any value to the pursuer's feu if it is held to affect only the area No. 854, or that any reasonable person would stipulate for or submit to any such restriction. The practical result of my opinion is to decide that the clause of restriction as expressed in the defender's title has been so badly blundered that it cannot receive any effect. I accordingly assoilzie the defender.”

The pursuer reclaimed, and argued—It was not for the pursuer to show that he had a substantial interest to enforce the restriction, but for the defender to show that he (the pursuer) had not— Greenhill v. Allan, July 8, 1825, 4 S. 160; Proprietors of Royal Exchange Buildings, Glasgow, Limited v. Cotton, 1912 S.C. 1151, per Lord Kinnear at 1158, 49 S.L.R. 945, at 949. Esto that the pursuer could not found on the feu-contract, the disposition contained the same declaration. The pursuer's title to enforce the restriction was good. The words “Miller and his foresaids” meant “Miller and his heirs and assignees.” A burden in favour of a disponer's vassal was in a much stronger position than a jus quæsitum— Coutts v. Tailors of Aberdeen, August 3, 1840, 1 Robb. App. 296, per Lord Gillies at 306 and 310. The subjects were sufficiently described. The words “the ground now or formerly occupied as the lawn between,” &c., were perfectly definite, but if they were not it was competent to use parole evidence to identify the subjects— Caledonian Railway Company v. Jamieson, November 17, 1899, 2 F. 100, 37 S.L.R. 63; Reid, &c. v. M'Coll, October 25, 1879, 7 R. 84, per Lord Justice-Clerk (Moncreiff) at 90, 17 S.L.R. 56, at 59; Houstoan v. Barr, 1911 S.C. 134, per Lord Dundas at 142, 48 S.L.R. 262, at 265. With regard to the meaning of the word lawn, reference was made to Palmer v. M'Connick, 1889, L.R., 25 Ir. 110.

Argued for respondent—The pursuer could not found on the feu-contract. Moreover, it merely imposed a personal obligation on Smith that if he feued the adjacent ground he would put the restriction into the relative feu-charter, and the disposition only placed Wakefield under the same personal obligation. Further, the restriction was conceived in favour of Miller alone, for “his foresaids” were nowhere described or defined in the preceding clauses of the disposition. The restriction was not binding on a singular successor of Wakefield, for there were no words in the defender's titles habile to impose a real burden on the lands. The question in the present case was not one between a granter and a grantee, nor was it a question of prescriptive possession. Only the defender's titles could be looked at to ascertain whether or not there was a real burden— Magistrates of Arbroath v. Dickson, cit. ( per Lord President (Inglis) at 634), followed in Campbell's Trustees v. Corporation of Glasgow, March 20, 1902, 4 F. 752, per Lord Kinnear at 760, 39 S.L.R. 461, at 466; Caledonian Railway Company v. Jamieson, cit. The titles must be strictly construed— Cronin v. Sutherland, November 29, 1899, 2 F. 217, 37 S.L.R. 160; Liddall v. Duncan, July 12, 1898, 25 R. 1119, 35 S.L.R. 801; Clark & Sons v. School Board of Perth, May 28, 1898, 25 R. 919, 35 S.L.R. 716. A real burden could only be imposed on a property if it were definite, and its definiteness could not be ascertained by going outside the titles. The intention of parties could not be invoked by the pursuer to validate the restriction if the restriction were not properly expressed in the titles— Walker's Trustees v. Haldane, February 28, 1902, 4 F. 594, 39 S.L.R. 409; Craig v. Gould, November 9, 1861, 24 D. 20, per Lord Ordinary (Mackenzie) at 24. Counsel also referred to Hislop v. MacRitchie's Trustees, June 23, 1881, 8 R. (H.L.) 95, per Lord Watson at 102, 19 S.L.R. 571, at 575. Further, the restriction here was ambiguous. The date of occupation, whether that meant the date of the disposition or the date of entry, the words “between the ground feued by me,” &c., and the word “lawn” were ambiguous.

At advising—