Scottish Court of Session Decisions

At advising on 14th July 1949,—

LORD JUSTICE-CLERK (Thomson).—The late Alexander Smith was prior to Whitsunday 1946 the proprietor of the farm of Bethelnie. He acquired the farm in 1921. On one side of the farmhouse the garden wall runs up to within a few feet of the gable end. When the farm was originally acquired by Mr Smith this gap between the wall and the gable was spanned by a fence and gate, apparently of a somewhat untidy character. In 1935 Mr Smith erected a summer-house in the gap. The summer-house adjoined the garden wall and the space between the summer-house and the farmhouse was filled by a gate which was on hinges driven into the wall of the farmhouse, while the latch end of the gate closed on to the summer-house.

The method of constructing the summer-house itself was that the ground was levelled by removing the turf, and a number of stones of the sort used for the foundations of stacks were laid down on the ground so prepared. It seems that some half dozen stones in all were used, one at each corner and the others in the middle. The summer-house was some 10 feet by 10 feet. It had a door and two windows to the front and a window at each side. The sides were of wood and the roof of iron. The whole inside was lined with half inch linings. There was a rone pipe round the roof and a take-away pipe to the ground. After erection a short length of pipe was led from the foot of the take-away pipe to a hole which appears to have been filled with rubble and stones. The floor and roof were constructed in a carpenter's shop and transported to the site. The floor was laid on the stones already mentioned and the rest of the summer-house erected on the spot. It was a substantial affair and its weight was estimated at two tons. Some months after its erection the space between the floor and the ground which was caused by the height of the stones was sealed off with some rough rubble and cement. A cement step was placed at the door. Linoleum was placed on the floor. The use made of the building appears to have been the sort of use to which a summer-house would usually be put, and in addition it was used as a place for storing certain articles in use on the farm such as chicken boxes.

There was evidence that Mr Smith when he built the summer-house was advised to build it up to the house itself, and that he replied, "No, I'll keep it away from the house. I might lift it any time." It was submitted that this showed that he had in mind to take it away whenever he came to remove from the farm. This seems far fetched, and I do not think that he meant any more than that the original site was experimental and not necessarily final. Apparently the experiment was a success for no change was made, and, when the farm came to be sold, the summer-house was in position as a permanent feature filling, along with the gate, the gap between the house and the wall.

When the pursuer was shown over the farm as a prospective purchaser, the only thing mentioned as excluded from the subjects of sale was a henhouse which he took over at a valuation. The summer-house was pointed out to the pursuer and was shown to his wife. There was no suggestion that it was excluded, and it was not said by Mr Smith or his wife that they intended to take it away.

On the evening before the pursuer was to take over, Mrs Smith telephoned him on some other matter and, according to the pursuer, said, "There is one thing I would like to ask you. Could I have the summer-house?" The pursuer replied, "Indeed no, the summer-house is in with the deal." Mrs Smith's account of the conversation was that she said, "Oh by the bye, what about the summer-house? I cannot get immediate transport for it," and that the pursuer replied, "That was in with the deal." Whichever is the correct account, Mrs Smith solved the problem of immediate transport as she got in touch with Mr Gammie her nephew that night, and the summer-house was removed next morning before the pursuer arrived to take over the farm. The method of removal was explained by Mr Forbes. The roof was removed as the house was too big to shift as it stood, on account of the overlay on the lorry which was to convey it. To remove the roof it was necessary to take off the lining inside. After the roof was off the rest of the house was hoisted on to a lorry. Six men were required for the operation. The summer-house was subsequently re-erected and was apparently none the worse of its adventures.

The disposition by Mr Smith in the pursuer's favour conveyed to him, inter alia, "the whole houses, biggings, yards, orchards, tofts, crofts, outsets, insets, mosses, muirs and privileges and pertinents thereof." The sole question in the present case is whether the summer-house falls within these words.

The Sheriff-substitute reached the conclusion that at the date of the sale the summer-house was moveable and therefore did not fall within the words of the disposition. The Sheriff-substitute proceeded on two main grounds—(1) the lack of attachment to or incorporation with the soil, and (2) the fact that the summer-house was removed without injury to itself or the surrounding soil. He regarded these as tests of whether the summer-house was heritable or moveable and, tried by these tests, he thought it was moveable. It is perfectly true that the summer-house was not bolted to the ground or attached to it in any specific way. It rested on the stones by its own weight. It is also true that "except for taking off the roof for facilitating its transport the summer-house was taken intact from its site, and the ground was not injured." But although these two elements may be useful guides in determining the question before the Sheriff-substitute, failure to pass these tests either singly or together is not necessarily conclusive against the structure's being heritable. The Sheriff-substitute appears to have regarded annexation in the physical sense as a sine qua non, and, indeed, his use of the removability test is closely associated with the incorporation test, as injury to the site is a main element in considering removability.

In my view simply to ask as the Sheriff-substitute does "Is this a fixture?" and then to decide "No" on the two tests of physical annexation and removability is too narrow a way of looking at the problem. It is difficult to extract from the authorities and text writers any very satisfactory general statements of the law, but this is probably due to the fact that the character of the problem varies so much according to the legal relationship in which the parties stand. What may be suitably stated in a case of heir and executor may be almost misleading in a case of landlord and tenant. Even within the ambit of one particular relationship, circumstances may vary greatly. In the present case the proper approach is to have in view that what is to be decided is whether, on a sale of houses and biggings on the farm, this summer-house was so associated with the farm and its buildings as reasonably to be considered as passing on the sale. Would a reasonable purchaser and a reasonable seller have in contemplation that it would so pass? No doubt the element of annexation to the soil is of importance, and on occasion it may be conclusive, as the annexation may be of such a character as to imply the presence of the other main elements pointing to the structure's being heritable. But the degree of annexation may vary tremendously, particularly in view of modern methods. This variation may arise from the mode of annexation and the extent of it. So too the element of removability varies from case to case, and here again modern methods make removable things which would formerly have hardly been so regarded. But, even in the light of these two elements, I feel that the preparation of the site and the erection on that site of a structure of the weight of two tons with the cement sealings, the step and so forth go far to indicate annexation in a practical sense. This view is fortified when one considers that the removal could be effected only by taking out part of the lining, removing the roof and transporting by motor lorry. These matters of themselves go far to make me think that a reasonable buyer and seller would naturally contemplate that this summer-house was part of the farm buildings.

But there are other elements of importance and it is as a general rule only by a consideration of the whole circumstances surrounding the history, object and function of the structure that it is possible to decide whether it is heritable or moveable. This summer-house had been in position for eleven years. Even if its original position had been tentative, time had made it a permanent feature of the steading. Permanency or quasi-permanency is of great significance. So too is the position which the house occupied in the farm scheme. It filled the gap between the garden wall and the end of the house except for that most useful appendage of a farm, a gate into the ground beyond the farm. In position with its adjacent gate, quite apart from its intrinsic qualities as a shelter or extra accommodation or dump, it performed a useful function on the farm. It enclosed the garden and shut off the ground beyond. When it was removed there was a gap, and a useless gate. Something would have had to be put up in its place unless a way to the fields was to be left open and the curtilage of the farm was to be altered in an important feature which had obtained for eleven years.

Accordingly I reach the conclusion that this summer-house had become a permanent feature of the appointments of the farm and could reasonably be considered as the sort of thing which would pass on a sale of the farm.

I have considered the matter from the point of view of the position as it could be ascertained on the spot by any one making a study of the farm steading, its appointments and requirements. But it is comforting to feel that, when the bargain was entered into, the parties appear to have had similar views, as it appears to me that it was only late in the day that Mrs Smith thought of removing it.

The Sheriff-substitute refused to take assistance from certain cases decided in the Valuation Appeal Court. I think that he was wrong in disregarding them. In considering whether certain structures were heritable or moveable, that Court has consistently applied the principles operating in cases between heir and executor. These principles are broadly speaking the same as fall to be applied in the present case.

LORD MACKAY .—While the value of the subject (a summer-house) in dispute in this appeal was never placed at a higher figure than £80, and while it would appear that a rough assessment by the Sheriff-substitute at £50 is to be accepted, yet I sadly fear that the real value (expenses aside) hardly justifies the time of a Division in hearing re-read 85 pages of oral testimony, and 17 pages of written testimony. The question being so treated, however, and the debate having been heard out at full length, it is, in my opinion, our function to decide the sole, and really simple, question.

What is that question? It seems to me just this: Was the house or building described as a "summer" house, in the place where it stood and erected of the materials and in the mode which obtained upon the 27th and 28th of May 1946, a heritable subject—Was it pars soli?

On the first of these two days, it still stood unaltered and not "disannexed," but erected on the "lands and farm" of Bethelnie, in undiminished completeness. At that date a probative bargain of sale and purchase had for some time been completed, to pass the ownership of the "lands and farm" from Alexander Smith to William Duthie Christie. The said bargain was completed on 18th January; the entry stipulated in writ was as "from Whitsunday," which entry means 11th May to the lands and from 28th May to the buildings. Further, the terms of the disposition were already adjusted, and it was signed by parties on 10th and 17th May, therefore ten days before the action to be next referred to, of Mrs Smith. It does not seem to matter that implied entry with the superior was not taken till 24th May, several days later, and in any case I presume that delivery of the signed deed had already been effected through the acting agents.

Now, on that 27th May I think it is most clearly proved that the wife of the seller (one Alexander Smith, who was in fact an invalid, but yet not laid off business) telephoned to the buyer and asked, "Could I have the summer-house?" and that she received the reply, "Indeed, no, the summer-house is in with the deal." (As will shortly appear, I feel quite certain that this answer was correct both in law and in fact.) She admits the use over the 'phone of the words, "That was in with the deal," and further testifies:

"That was all that was said, and I hung up the 'phone."

In other words she slammed down her end of the telephone.

Now, such action, at such a time, strongly predisposes me to the view, otherwise plain enough in fact and in law, that she had no just claim to "have" the house away. The part of an honest, straightforward wife, claiming on behalf of the seller to have such right, was to put forward there and then the grounds, if any, of her claim, and at least to make the buyer aware of her intention to remove the subject next day, and to have fairly had the question out before irretrievable action taken. She deserves no pity or compassion.

Well, to finish, she instructed a contractor, Mr Meston Mackie, that very night, who arranged for removal "before 12 o'clock." She obviously also arranged that a lorry should be taken (witness Reid), and that he should be aided in the job by carpenter Forbes and an apprentice of his. One Edward Robertson was also on the spot. Without the presence of Christie or of his wife, then, on the appropriate day for flitting from "houses," this erection called a "house," or at any rate a "summer-house," is taken down thus:—Its roof (10 feet square of iron) is lifted off and separately moved; its rone pipes, both horizontal and upright, are probably similarly removed but this is not touched upon. Its wooden room, consisting of 10 foot square floor, walls, and ceiling joists for the iron cover, and inserted in the walls a door, four windows, and the rest, are all lifted off the five large stones on which all this structure had for eleven years been rested. These stones are left in situ. Lastly, a stone or cemented step is also taken away (it can hardly have been bodily lifted with the floor); but the other cementing, which filled an almost necessary gap between the prepared flat site and the base of the wooden floor, is broken up and cast about on the ground and there left. So treated, one or at most two loadings of the "lorry" apparently sufficed. It was therefore lifted and conveyed in at least three separate parts, with two more "parts" left lying on the ground.

I have put it so in some detail, because it was so easy for counsel in vague terms just to say it was lifted away ("for convenience") in two parts.

Now, I am here and now prepared to say that on several grounds this "subject" was one included in the sale, and that it was a heritable subject just because it was a house and a "bigging," Scots for "building." It was undoubtedly originally built up upon the site (if the occurrences of that now distant year (1935) are provable at all). It was not erected, whether with or without roof, rones and step, as a moveable unum quid, at any other place. It stood therefore for many years attached to the site by, I think, a good deal more than its own weight, on five supporting stones, which almost inevitably were, by eleven years' use of a two-ton erection, to some part sunk into the soil; and the stones themselves were in my judgment an undoubted part of the building itself, having been, it may no doubt be so, converted from an older use, but having been readjusted and having thereafter remained as part of the "bigging" for all these years.

Now, there was much detail led as to whether this erection or structure (one of these phrases must apply to it) was thought by older witnesses to be "portable" or "removeable." These answers were either obtained by leading questions, or as in one case by the Sheriff-substitute when all else was done—a very dangerous expedient. And in other respects also, great play was made of the evidence supposed to be testimony of "intention"—meaning thereby, the alleged "intention" of the erector of eleven years gone by, as to whether he would at any time move it, or might shift it from place to place.

For many reasons, I think the law as to the heritable or moveable character of a "bigging" cannot be determined by any such testimony, to which the buyer (claimant) could have had no access at all—and as to which he or she certainly knew nothing at all at the critical time. Why so? First of all, because of the law of Lee v. Alexander, even in the presence of original articles of roup, the measure of the contract is to be found in the disposition. That document had, as I have shown, been completed by 17th May, and it contained the words "houses" and "biggings." It is for the Court, in my opinion, unaided by any such carpenters and farmers as Lindsay or Gammie to consider the nature of the erection itself, with the description of the probable uses to which such a building will serve (protection from rain and wind, moderation of sunshine even on "summer" days, &c.) and the comparative permanency of any or all attachments, and to decide whether the subject falls under the above said description; and so regarding it I ask myself, Is there presented in any reasonable sense a moveable subject, as opposed to a heritable subject—a pars soli? I am of opinion that without doubt this particular subject, in relation to the whole ground and subjects as conveyed by the disposition, was a part of the land, was connected with it, "annexed" to it, or, which is in law absolutely sufficient, resting with its own whole weight (of two tons) upon it, in such a guise that everyone offering for the whole lands would understand it was a pars soli.

From that point of view alone I think that any part of the proof of the character to which I have referred goes to show, or trends towards bespeaking, this structure as a thing (value, say, £50 plus) without the inclusion of which the final price offered and agreed for the "lands and farm" would in all probability have been materially lessened. And this on ultimate analysis seems to be a sound test.

The error in the frequent use of the supposed authority of Professor Rankine's chapter in Land-Ownership (Chap. VIII), and an error going deep into the supposed exposition of the law, is twofold: (1) it is assumed that we are in the region of "things in themselves moveable" (Rankine, Land-Ownership, (4th ed.) at p. 118) and therefore that to make them heritable is to change their character, and it is argued as following thereon that in order to do so there is an onus thrown on those who allege such changed character. That whole assumption, in my opinion, does not apply here at all. (2) It is assumed that the law apposite is a law of fixtures. It is not. To reach this negative conclusion, it is only necessary to go back from the "Fixtures" chapter of Professor Rankine (Chap. VIII) to the previous chapter (Chap. VII) which puts forward the general rule of Scots law in this matter as being "accessorium sequitur principale"—and the accessories specially referred to cover "… buildings." When, much later, the Professor inserts, in Chap. VIII, a very short passage under a fuller discussion of the effect of "intention" (pp. 124 to 133 of the fourth edition), as to the present problem of claims between "seller and purchaser," he succinctly says (p. 128):

"Here the rules given in the preceding sections as applicable between heir and executor, apply in full force. Everything goes with the land … which the heir would have had a right to as against the executor of the vendor."

Now that consideration is, in my judgment, without doubt the ruling one. As between an "heir" in heritage and an "executor," both must necessarily be regarded as in ignorance of the old history, if any, of "intention"; and it may indeed very often be that they are completely ignorant. And I agree with counsel that the law must itself arrive at a due decision as to a structure like this, upon general present description, and not at all upon grounds of doubtful and slippery oral testimonies, parts of which may well have perished. Such, at any rate, is the effect of Professor Rankine's law. I would therefore completely exclude as between (a) heir and executor, (b) buyer and seller, all that which may be called "original intention." We must look at the structure as it stood, as a whole, for many years past.

I turn, however, very shortly, lest I be wrong, to deal a little with the many facets of "intention." I agree with Professor Rankine entirely in the passage which he quotes (at p. 118) from the opinion of Lord Ellenborough, C.J., in Elwes v. Maw, and which must just be cited in full:—

"In this first case—i.e. as between heir and executor—the rule (i.e. accessorium, &c.) obtains with the most vigour in favour of the inheritance, and against the right to disannex therefrom and to consider as a personal chattel anything which has been affixed thereto. Secondly, between the executors of tenant for life or in tail, and the remainderman or reversioner in which case the right to fixtures is considered more favourably for executors than in the preceding case between heir and executor. The third case—and that in which the greatest latitude and indulgence have always been allowed in favour of the claim to having any particular articles considered as personal chattels, as against the claimant in respect of freehold or inheritance—is the case between landlord and tenant."

Now so much being rightly settled and laid down, it was here most remarkable that nearly all the selected dicta quoted from more recent cases took one back to Lord Ellenborough in the old case of Elwes v. Maw in 1802. There the question as to certain "beast-houses," "fuel-houses," &c., and a "brick wall" occurred (as did numberless other cases there traversed) in a case between landlord and tenant. The instances of such sorts were there of the latter classes, that is, from landlord and tenant relationships, or, where not so, they were from the class of tenant in tail and remainderman (English), or from mortgagor and mortgagee (again with different outlooks). In all these cases it is surely easy to see that there has been a continuous association for the whole "term" of both parties, and therefore old evidence of intention may be neutral or common. In any event even in Elwes the whole subjects were held heritable:

"We feel ourselves, in conformity to and in support of this authority, obliged to pronounce that the tenant had no right to take away the erections stated,"

said his Lordship. Some of these references by counsel were to the Scottish cases of Brand's Trustees v. Brand's Trustees 1876 3 R (HL) 16 and Dowall v. Miln . The case of Brand is of a mixed character, for there was a current lease of a colliery, and machinery of a kind had been attached: the question was as to whether it was detachable and claimable by the executor of the tenant who died in 1873, while the lease was due to run on for nineteen years from 1867, i.e., to 1886. His opponent was an heir in heritage (apparently under a separate deed), but representing himself as entitled to carry on the lease to the finish and maintaining that the machinery was heritable, as his right in the leasehold was a heritable right. The Division here held for a moveable character, but the House of Lords pronounced for the heritable character as matter effeiring and necessary for the heritable subject of the lease. One other case, Dowell v. Miln, I refer to (it was itself between heir and executor) merely for this clear passage from Lord Ormidale (at p. 1185):

"It is clear that the cases of landlord and tenant have no application. The tenant is himself a temporary occupant merely; and on the ordinary principles of contract as betwixt landlord and tenant the latter may be entitled to remove machinery, which, in a question like the present, betwixt heir and executor, might be held to be fixtures."

For these reasons I think that nothing has been adduced to show in any wise in matter of law that this built erection, with its roof, rone, door, doorstep and many windows, was ever at any time anything but heritable in character. It is to me impossible to predicate of it that it was ever at any time "in its own nature a moveable."

Now lastly, I am also prepared to say, although considering it to be quite unnecessary, that if one is induced to look at what Mr Smith, the seller, "intended" in 1935, the very same result would appear. At the best one witness appears to make him say (in a casual conversation) that as against erecting it "tae the hoose," he said, "No, I'll keep it away from the house. I might lift it at any time." I am persuaded that, if that be sufficiently proved (as I think it not to be) the deceased speaker was not thinking of removing this two-ton erection from his general farm and farmhouse, but rather of shifting it a few yards so as to be right up against the farmhouse wall.

Lastly, again on the further supposition that recent evidence of things said and done while the sale was proceeding is competent (which once again I am not disposed to grant), I am of the clear apprehension that, both while the wife of the actual purchaser was inspecting the subject, and also while other possible offerers were looking it over, the seller or his wife showed off the summer-house, both exterior and interior, in such a way as any prospective buyer would understand he was to obtain the subject undivided, and as exhibited.

For all these grounds I find no reasonable room for doubt that the claim by Christie on the 27th of May that he had the structure in question as part of his purchase was both in law, and in equity, and in fact, correct.

Since Mr Guest will not accept an offer of substituting a payment by way of damage for specific implement, I propose that we should meantime grant an order for restoration, since the subject appears to be still entire in another locus and it can be taken back as easily and with as little expense as it was taken away in the first instance.

LORD JAMIESON .—The subject-matter of this litigation is a summer-house which stood on the farm of Bethelnie when the pursuer bought the farm from the late Alexander Smith in 1946, but which was removed prior to his entry. It was a substantial structure some 10 feet square and weighing about two tons. It was built of wood with a wooden floor and an iron roof, and the walls were lined with wood. It had a door with a window on each side of it in front, and a window at each side. It was not affixed to the ground, but rested by its own weight on flat stones, on a site which to some extent had had to be prepared by levelling. The space between the floor and the ground had been filled with stones and cement, but merely to keep poultry and vermin out, and a cement step had been constructed in front of the door. A rone and down pipe took the rain water from the roof, and it was carried into a hole filled with stones a short distance away by a pipe put in by one of the farm workers. It was put up in 1935, the floor having been constructed in a workshop and the structure erected in situ. When removed, the roof had to be taken off, because of difficulties in transport, but otherwise it was removed en blocand reassembled in the garden of the house to which Mr Smith had removed.

By the disposition in his favour there were conveyed to the pursuer inter alia all the houses and biggings on the farm. Prima facie it would appear that the structure in question fell within that category, but it is said that it did not pass under the disposition, not being heritable but moveable, in respect that it was not attached to the soil, and was capable of being moved, and was in fact removed, without damage to itself or to the site.

The test of whether a subject is heritable or moveable in a question between vendor and purchaser is the same as between heir and executor, subject to this, that in the former case the question always is what was the meaning of the contract, and as was pointed out by Lord Kyllachy in Cochrane v. Stevenson 1891 18 R 1208 "inferences and presumptions deducible from the nature of the article may be much more important and to the point as between buyer and seller than as between heir and executor."

We had a full citation of authority, but the cases mostly related to articles in themselves moveable, a matter which cannot be predicated of the present structure put together in situ, and the question was whether they had been so annexed to the soil or building as to become heritable. Even in the case of such articles physical annexation may not be necessary to render them heritable (D'Eyncourt v. Gregory ) and where the subject is not so completely annexed as to prevent its being removed without injury a decisive factor in favour of its being regarded as heritage may be whether "there be a special adaptation in the construction of the article itself to the uses or improvement of the heritable property to which it is attached which it would not possess if placed elsewhere" (per Lord Justice-Clerk Moncreiff in Dowall v. Miln ). The Valuation cases of Assessor for Glasgow v. Gilmartin, and Menzies v. Assessor for Edinburgh afford examples of erections which merely rested on their own weight being held to be heritable. It was said that these cases were not applicable. It is true that they are not binding on us, but in each case the question to be decided was whether or not the subjects were heritable, and it appears to me that the reasoning of the learned Judges who took part in the decisions is entirely applicable. In Gilmartin Lord Mackenzie rejected as being conclusive tests against a building being heritable the absence of actual annexation and the fact that it could be taken to pieces and removed without injury to itself or its component parts. In Menzies Lord Fleming stated that the proper starting point was to consider the general character of the structure. Lord Robertson stressed the fact that the kiosks had been constructed for occupation of their individual sites and had remained undisturbed. Lord Pitman, who dissented, based his judgment on the absence of fixing or, in his view, of intentional permanency.

I have already dealt with the substantial nature of the structure in question. It is described as a summer-house but might be more aptly termed an outside room. An outstanding point, however, is the situation in which it was erected. It was built on the edge of a field or waste ground and faced into the garden, and it was placed there to fill a gap between the end of the garden wall and the house. Mrs M'Donald in reply to a leading question whether it had been put up for her father's convenience, answered, "Yes, and to fill the gap," and later said, "It was actually built to complete the garden wall as between the dwelling-house and the wall." The defender said that that part of the premises was untidy and that she and her husband decided that they could make it tidier by erecting the summer-house which might be convenient. It was constructed of such a size that it and the little gate, between it and the house, giving access to the ground behind, did in fact just fill the gap, and I think it must have been apparent to anyone who inspected the premises that the site was chosen and that it was constructed and erected there for that very purpose with the intention that it should be a permanent feature of the lay out of the premises. In my view, therefore, it falls to be regarded as heritable and passes to the purchaser.

I have not omitted to consider the evidence given by Mr Robertson that before the summer-house was erected Mr Smith had said that he might lift it at any time. Even had I thought that evidence relevant it would not in my view have carried the defender very far, for the summer-house was allowed to remain on its site for eleven years, and, even if it had been moved to another part of the farm garden, that would not have been conclusive of its being moveable. In my opinion, however, the evidence is not relevant. The construction of a contract cannot depend on what was said by one of the parties years before, and the question whether an article or building was intended to become part of heritable subjects to which it has been annexed or on which it has been placed is not to be determined by extrinsic evidence, but by circumstances patent for all to see, such as its nature, position and the degree and object of annexation—Holland v. Hodgson; Hobson v. Gorringe .

I agree with your Lordships that the appeal should be allowed.