Scottish Court of Session Decisions

At advising on 1st March 1991,—

LORD MCCLUSKEY .—This is an action for specific implement in which the pursuers and appellants seek to have the defender and respondent ordained to maintain a supply of water in accordance with an obligation said to have been created in a disposition recorded on 9th August 1982. The disposition effected a transfer from the appellants to the firm of D. V. Rennie & Co. of the title to the lands described in the disposition, including part of a mill lade. The present defender is a singular successor of that firm. At the time of purchase the lade was open but the disponees thereafter infilled their part of the lade. In place of it they provided a flexible pipe but, according to the averments, the effect was radically to reduce the rate of discharge of water from the former lade into the lade downstream, still belonging to the appellants. A dispute has now arisen as to the right of the appellants to insist upon the maintenance of the supply of water from the disponed mill lade to that part of the mill lade owned by them. After debate, the sheriff dismissed the action. On appeal, the sheriff principal refused the appeal and adhered to the interlocutor of the sheriff.

In this appeal, the appellants move the court to recall the interlocutors pronounced by the sheriff on 3rd May 1989 and the sheriff principal on 28th September 1989 dismissing the action. Since those interlocutors were written, certain amendments have been made to the process as a result of which there is now a single defender, the respondent. Another amendment, allowed at the bar at the end of the debate before this court, has effected the deletion from the crave of that part of it which specified the precise means whereby the flow of water mentioned in the first part of the crave was to be achieved. In the result, the crave now reads as follows:—

"The pursuers crave the court to ordain the defender within 30 days or such other period as the court may appoint to maintain the supply of water in that part of Mill Lade disponed to D. V. Rennie & Co. by disposition in favour of the said firm by the pursuers dated 9th July and recorded in the Division of the General Register of Sasines for the County of East Lothian 9th August both months in the year 1982, to provide an adequate flow of water to cleanse and drain the remaining parts of Mill Lade through the village of West Barns, not forming part of the subjects disponed, all to the reasonable satisfaction of the pursuers; and for the expenses of the action."

After hearing debate, the sheriff, on 3rd May 1989, dismissed the action and sustained pleas no. 1 and 3 for the then defenders. It was accepted before us that the course that the sheriff should have followed in relation to the pleas-in-law was to sustain the first plea-in-law only and to dismiss the action in respect of that plea.

The debate before the sheriff was concerned with one issue only, namely whether a provision in the disposition created a real burden enforceable against singular successors or, alternatively, was couched in such terms that it was void for uncertainty and unenforceable. The provision is in the following terms:—

"But also with and under the following burden, namely that our said disponees and their foresaids shall, so far as within their powers, maintain the supply of water in the said Mill Lade to provide an adequate flow to cleanse and drain the remaining parts of the Mill Lade through the village of West Barns, not forming part of the subjects hereby disponed, all to the reasonable satisfaction of us and our successors."

When the appellants sold the burdened land they were the proprietors of the mill lade both in the area of land disponed and downstream thereof. They are still proprietors of the land containing the lower part of the mill lade which, it is said, flows through the village of West Barns, Dunbar, East Lothian. The note annexed to the interlocutor of 3rd May 1989 discloses the reasoning of the sheriff. He says that there is "an obvious inconsistency" in the statement of obligation, namely:—

"to cleanse and drain the remaining parts of the Mill Lade through the village of West Barns, not forming part of the subjects disponed".

Both he and counsel then acting for the pursuers thought it appropriate to treat the words "and drain" as being an error and concluded that the proper course was to treat them as pro non scripto. In so far as it appears from the sheriff's note that this was a concession made by the pursuers, that concession was withdrawn before us. Counsel for the pursuers argued that there was in fact no difficulty in understanding an obligation "to cleanse and drain" the mill lade; it was plain from the ordinary dictionary meaning of the word "drain" that a flow of water which cleansed the mill lade would also help to drain it. I did not understand counsel for the defender and respondent to challenge the appellants' right both to withdraw the concession and to submit that the expression "to cleanse and drain" was comprehensible and meaningful in the context. However, the respondent maintained the criticism which the sheriff had accepted; that criticism related to the content of the obligation supposedly imposed by these words: it was impossible to know from them with any precision what the proprietor of the burdened lands had to do and what standards of cleanliness or drainage had to be achieved in the varying conditions that were likely to occur over the years. That argument was one which found favour with the sheriff. He was not impressed by the suggestion that the words in the provision, namely, "to the reasonable satisfaction of us and our successors" made the obligation any more precise, or easier to understand. The sheriff was unable to find in the words of the provision the answer to what he considered to be "the real question", namely "how much water must the proprietors keep in the lade and how much must they allow to be discharged".

In the absence of any definition of the capacity or rate of flow the obligant, it was said, could not assess the extent of his obligation. In any event, the obligant could not know what would be "to the reasonable satisfaction" of the proprietors of the land in whose favour the burden was intended to be created. In these circumstances, the sheriff concluded that the obligation sought to be imposed by the inclusion of the burden was void for uncertainty. The learned sheriff principal was impressed by the same arguments and further considered that the use of the word "maintain" left matters unspecified, undefined and imprecise.

Substantially the same arguments were repeated on behalf of the defender and respondent in this court. It is easier to set forth those arguments first. Counsel for the defender and respondent argued that it would have been competent and simple to define the desiderated flow in terms of litres per second. That obvious and simple course had not been followed. There was no guidance to be found by looking at cases dealing with common law obligations to maintain a natural flow of water. The flow of water in the mill lade was not a natural flow but a man-made flow through an artefact. There could be no obligation to maintain the flow in a mill lade if the river from which the water was to come dried or silted up. More generally, however, it was clear from many authorities that a real burden, to be effective, had to be specific and precise. Furthermore, any such burden had to be strictly construed against its author. The precise obligation sought to be created had to be ascertainable from the four corners of the deed itself, so that a singular successor reading the words in the deed could know precisely what his obligation was. Reference was made to Tailors of Aberdeen v. Coutts (1837) 2 Sh. & McL. 609; Hunter v. Fox 1964 SC (HL) 95; Kemp v. Magistrates of Largs 1939 SC (HL) 6; Anderson v. Dickie 1915 SC (HL) 79 as supporting these general principles. Your Lordships refer more fully to the key passages founded upon. Reference was also made to various authorities in which certain of the words used in the present deed had been considered. Such consideration, it was said, illustrated that words like "reasonable", "unseemly", "adequate" and the like were too vague and imprecise to support enforceable obligations when in a context like the present. Reference was made to Anderson v. Valentine 1957 S.L.T. 57, Murray's Trs. v. Trs. for St Margaret's Convent (1906) 8 F. 1109; 1907 S.C. (H.L.) 8, Lord Clinton v. George Brown (1874) 11 S.L.R. 665, and Fleming & Ferguson Ltd. v. Paisley Magistrates 1948 S.C. 547. Furthermore, the words, "the remaining parts of the Mill Lade through the village of West Barns" did not have a clear meaning. The village of West Barns, it was said, might grow and a singular successor would not know the extent of the mill lade to be cleansed and drained.

Counsel for the pursuers and appellants did not dispute the general statement that for a real burden to be enforceable it has to be written in language which clearly expresses the obligation, the presumption being always for freedom; Anderson v. Dickie, per Lord Dunedin at p. 89. However, the correct approach to the construction of words in a provision which was obviously inserted in order to create a real burden, as was the case here, was to be found in the speech of Lord Reid in Hunter v. Fox at p. 99:

"I can think of no stricter method of construction—and none was suggested in argument—than to ask whether a reasonable man with a competent knowledge of the English language could have any real doubt about the meaning of the provision read in its context in the disposition. If the words are self-contradictory, or so obscure that one has to grope for the meaning, then the provision is ineffective, and it is also ineffective if it is ambiguous or reasonably capable of it having more than one meaning. There can be no benevolent construction in the sense of spelling a meaning out of obscure phraseology or preferring one of two or more reasonable possible meanings. But if the meaning is clearly apparent, that is sufficient to satisfy the test of strict construction. I can find neither reason nor authority for holding that defective drafting which does not obscure the meaning of the provision is enough to invalidate it."

It was not profitable, counsel submitted, to study the cases in which the court had, in quite different contexts, discussed the requirements for constituting a real burden. In this case there was no doubt as to which lands were to be affected and which lands were to benefit, i.e. to have the right to enforce the burden. The problem here was not the familiar problem of the constitution of a burden but the rather different problem of the construction of the terms in which the burden was couched. It was not submitted that the principles to be applied were vastly different in the two contexts but when the question was one of construction rather than of constitution then the best source of guidance was the passage from Lord Reid's speech quoted above. Indeed, upon a correct view, the problem here was one of applying the words to the situation on the ground; it was one of application. It was not possible in all circumstances to know precisely the content of the obligation created as a real burden, in the sense of how it fell to be applied, simply by looking at the words in a deed in the Register of Sasines. It was easy to figure circumstances in which it would be necessary to do more. Thus, for example, where the obligation was to avoid planting or building in such a way as to exclude a view from the adjoining ground, as in Hunter v. Fox, it would be impossible to tell precisely what that entailed without going to the premises to see what the existing view was and to what extent any planting or construction might interfere with it. It was also quite wrong to pick words like "maintain", "adequate" or "cleanse" or "reasonable" from different contexts and to examine the constructions put upon them in those different contexts in other cases. The correct test was that of a reasonable man with a competent knowledge of the English language looking at the whole wording in which the burden was couched. From that perspective, the obligation here was to maintain the supply of water in the mill lade. That might involve enquiry at a later, even much later, date as to what the flow had been in 1982; but the courts found no difficulty in imposing and enforcing a similar duty arising at common law to maintain a supply of water in a natural water course in broadly similar circumstances: Young & Co. v. Bankier Distillery Co. (1893) 20 R. (H.L.) 76; there was no reason to suppose that the difficulty would be any greater in this case than in a common law case of that character. In that case Lord Macnaghten said, at p. 78:

"A riparian proprietor is entitled to have the water of the stream on the banks of which his property lies flow down as it has been accustomed to flow down to his property … Every riparian proprietor is thus entitled to the water of his stream in its natural flow without sensible diminution or increase, and without sensible alteration in its character or quality. An invasion of this right causing real damage, or calculated to found the claim which may ripen into an adverse right, entitles the party injured to the intervention of the Court."

There, Lord Macnaghton was contemplating an intervention by the court by interdict or by order ad factum praestandum to ensure the continuation of the natural flow without sensible diminution or increase. That was what was sought here. If such a common law objection was sufficiently precise to be enforceable by a court then this obligation, which was so similar, was sufficiently specific to be enforceable. In both cases some enquiry into the facts as they had been at some earlier date might be necessary. The addition to this provision of the words, "to provide an adequate flow to cleanse and drain the remaining parts of the Mill Lade" etc. could not be construed as enlarging that obligation. They merely described its purpose. At the proof it would be demonstrated "that the remaining parts of the Mill Lade through the village of West Barns" was a perfectly comprehensible description of a part of the mill lade from the defender's property to the sea. The final words, "all to the reasonable satisfaction of us and our successors" did not introduce a subjective element or a degree of obscurity. The word "reasonable" demonstrated that the proprietors of the land in favour of which the burden had been created could not act arbitrarily. The proprietors of the lower mill lade lands certainly could not insist upon any increase in the supply of water or indeed insist upon a flow which was more than adequate to cleanse and drain the rest of the mill lade; these words simply enabled them to provide, within the limits of the obligation already imposed, some limits upon what required to be done and to prescribe, subject to review, a method of achieving the desired object.

In my opinion, the arguments for the pursuers and appellants are to be preferred. It is not in dispute that a real burden has to be couched in intelligible, clear and unambiguous terms. In the present instance, in my view, that is the only test that matters in relation to the issue between the parties. Although, as is often said, there is a presumption in favour of freedom, I do not consider that that presumption has any material part to play in a case such as the present. Such a presumption is of value in cases where there is real ambiguity. In the present case, however, it is a matter of concession by the pursuers and appellants that if the words are ambiguous then, to quote Lord Reid, "the provision is ineffective". The pursuers and appellants, therefore, take their stand upon the assertion that the meaning of the burden is clearly apparent. In my opinion, they are right to do so; and the meaning is clearly apparent. I start from the factual background which is that in 1982 when the burden was written into the disposition the mill lade was open and had a supply of water entering it from a natural source. I assume, though this might well be a matter for proof, that in 1982 that supply of water was adequate to cleanse and drain the remaining parts of the mill lade, namely that length of the mill lade running through the property of the pursuers to the sea. On the face of it, therefore, the effect of the obligation was clear: in substance, it was to do nothing, provided the flow was not interfered with. What the wording of the real burden also contemplates, however, is that the disponees or their successors might in fact interfere with the mill lade in such a way as to diminish the supply of water. The disponers did not seek to impose any absolute prohibition on doing that; they envisaged its happening but imposed an obligation designed to mitigate the effects. The anticipated interference, according to the averments, took place; the disponees infilled the lade and significantly reduced the rate of discharge of water from the disponed ground into the pursuers' section of the lade downstream. It appears to me to be clear that their obligation at that stage in terms of the real burden, having chosen to interfere with the supply of water, was to take other steps, to find other means, of maintaining the supply of water as it was before the infilling at least to the extent necessary to continue to cleanse and drain the lade downstream. It was in contemplation of just such a possibility that the words "all to the reasonable satisfaction of us and our successors" appear to me to have found their way into the words of the real burden; and indeed that appears also to be the probable source of the words "to provide an adequate flow etc." In other words, the disponers were anticipating some interference with the existing supply of water; if it occurred they were prepared to tolerate it, as long as the owners of the land, when infilling, took satisfactory steps to provide an adequate flow to cleanse and drain the remaining parts of the mill lade. All that appears to me to be the plain meaning of the provision "read in its context in the disposition", to quote the words of Lord Reid. The obligations imposed by the provision are contained in the wording of the provision and nowhere else. It is necessary, no doubt, for a singular successor who wishes to understand what he has to do or refrain from doing to take steps to discover precisely what is meant by such expressions as "the remaining parts of the Mill Lade" and "provide an adequate flow to cleanse and drain the remaining parts … of the Mill Lade"; but I see no difficulty in that. It is easy to think of many real burdens the true content and application of which could not properly be understood except by a person who went to the site with a copy of the disposition in his hand in order to grasp the full meaning and implication of the burdens contained in the disposition. I have no real difficulty with the words "all to the reasonable satisfaction of us and our successors". In the first place, I regard these words as subsidiary to the obligation imposed by the words which precede them and as words incapable of enlarging the obligation which those earlier words impose. They can, in my opinion, mean only that the pursuers require that they, or their successors, should be satisfied as to what flow of water is "adequate" to achieve the purposes specified. But that judgment is expressly said not to be an arbitrary one for them to make. The use of the word "reasonable" guarantees that. We were not referred to any authority as to the effect of such a provision in other circumstances but it is commonplace to find provisions, of a character which the court will enforce, to the effect that certain steps may not be taken without the consent of a specified person or body, "which consent shall not reasonably be withheld". The use of the word "reasonably" in that context is, in my view, exactly comparable to the use of the word "reasonably" in the context of the present disposition. It enables the party on whom the obligation to maintain the supply of water is laid and the party in whose favour that obligation is conceived to refer the matter to judicial arbitrament in the event that they cannot agree as to precisely what supply of water is required to achieve the specified objectives of maintaining the supply. It is unfortunate that authorities on the question of how the court regards the use of the word "reasonable" in different contexts were not canvassed. The court has had to consider the content of such expressions in many different contexts, including statutory contexts where offences were created. I refer, simply by way of illustration, to Templeton v. Lyons 1942 J.C. 102, one of many cases in which the court had to deal with the notion of "reasonable excuse" for non-compliance with an attendance order made under the Education (Scotland) Acts. Barclay v. Hannah 1947 S.C. 245 is another example, this time in relation to the expression, "unless the court considers it reasonable to make such an order" in the Rent and Mortgage Interest Restrictions (Amendment) Act 1933 and the expression, "the dwelling-house is reasonably required by the landlord for occupation as a residence for some person engaged in … full time employment …" in the same statute. In that case it was held that it was the duty of the court to determine the matter of reasonableness. Perhaps the most telling case, however, is the full bench decision in Marshall v. Clark 1957 JC 68, overruling Allan v. Howman 1918 J.C. 50 and Morrison v. Ross-Taylor 1948 J.C. 74. It is unnecessary to discuss that case in detail but, in rejecting a submission that words imposing a duty to "take all reasonable precautions to ensure the safety of passengers in … a … vehicle" were too vague to create a criminal offence, the Lord Justice-General (Clyde) said, at p. 71:

"The effect of this contention, logically applied, would be very far reaching for in effect it would mean that the incorporation of the words ‘reasonable care’ or ‘reasonable precautions’, or similar words of a general character, in the statutory description of a prohibition would render the prohibition so vague as to preclude the possibility of any prosecution in respect of it."

He went on to note that:

"Statutory prohibitions or directions in a great variety of different circumstances must necessarily incorporate words with a general signification which are incapable of rigid definition. It would be quite contrary to our law that the mere fact that such general words occur in a regulation should lead to the inference that the regulation can therefore never be effective."

On p. 72 he concluded:

"I decline to endorse the view that their presence in a regulation thereby renders the regulation so unspecific that a breach of it can never be relevantly averred."

It appears to me that if a statutory offence can be created by such words, and it certainly can, then a fortiori a real burden upon lands is not to be held to be void from uncertainty simply because it incorporates the concept of "reasonableness" if it does so in such a way as to make it plain that the court has the right to review and determine the matter, as in Barclay v. Hannah .Furthermore, I consider it to be quite artificial to suggest that the obligation sought to be imposed by this provision needed to be defined in precise terms such as so many litres per second of flow. I doubt if that would have been possible; no doubt it would have been possible to specify the average flow in each month of the year in an average year of average rainfall or something of that character but I cannot imagine that it would be necessary to go to those lengths, particularly when the common law envisages that an obligation to maintain a natural flow is enforceable by the courts. Finally, the words in the present case, "so far as within their powers" dispose of the argument that there might be an obligation to maintain a supply of water in circumstances when the original source of water has dried up.

In arriving at this conclusion I am conscious of the fact that others find ambiguity, uncertainty and obscurity where I have found none. In my respectful opinion, such difficulties arise from looking artificially at this provision instead of looking for the natural meaning of the words in their context. If it were necessary to invoke some general presumption, I should prefer to assume that both parties who signed the original deed understood perfectly well what the provision meant and the court should not lightly reach the conclusion that it was always so obscure as to be meaningless.

I should, therefore, be in favour of allowing the appeal, reserving all the pleas-in-law and allowing a proof before answer. We were not addressed in any detail upon passages in the pleadings which should not be remitted to probation in the event of an allowance of proof. I should, therefore, be in favour of allowing the whole record, as amended, to form the basis of the proof before answer.

LORD SUTHERLAND .—In 1982 the defender's predecessors in title purchased an area of land which formed part of a mill lade. In the disposition in their favour the purchasers were taken bound to "so far as within their powers, maintain the supply of water in the said Mill Lade to provide an adequate flow to cleanse and drain the remaining parts of the Mill Lade through the village of West Barns, not forming part of the subjects hereby disponed, all to the reasonable satisfaction of us and our successors." Subsequently the purchasers infilled that part of the lade which lay within their ground and installed a 150 mm. flexible pipe in order to carry the water formerly carried in the lade. The pursuers maintain that this pipe provides an inadequate supply of water for the purposes mentioned in the disposition and now seek decree ordaining the defender to maintain the supply of water in terms of the condition in the disposition. During the course of the hearing the pursuers amended their crave in order to delete that part which seeks to ordain the defender to replace the pipe with another pipe of specific dimensions having accepted that it is for the defender to carry out his obligation under the disposition in such manner as might cause least inconvenience to himself. The issue before the court is whether or not the condition in the disposition is validly imported as a real burden or whether by reason of imprecision it cannot be regarded as a valid real burden. This issue was argued before the sheriff and the sheriff principal who both held that the condition was void from uncertainty and accordingly dismissed the action.

It is clear from the authorities that for a real burden to be validly constituted it must be very clearly expressed in precise terms in order that singular successors should be able to understand clearly from the terms of the title precisely what obligation is laid upon them: Anderson v. Dickie 1915 SC (HL) 79; Hunter v. Fox 1954 S.C. (H.L.) 95; Murray's Trs. v. Trs. for St Margaret's Convent (1906) 8 F. 1109; 1907 S.C. (H.L..) 8. In Murray's Trs. where the prohibition was against the erection of "unseemly" buildings it was held that the use of this word was too vague. It was said that "if opinions may differ it follows that it is too ambiguous for the exact definition of a right of servitude" and "so shifting a standard is not sufficient for the exact definition of a permanent servitude". In Anderson Lord Kinnear pointed out that the burden must be ascertainable without going beyond the deed. Counsel for the appellants founded strongly on what was said by Lord Reid in Hunter to the effect that defective drafting which does not obscure the meaning of a provision will not invalidate it. The point however in that case was that the words "at present" had been inserted into the burden in a context which made them absolutely meaningless and all that was held in the House of Lords was that these words could be treated pro non scripto and that their existence did not invalidate the remainder of the provision which was perfectly clear. I do not therefore regard the observations of Lord Reid as derogating in any way from the basic principle that a real burden must be expressed in precise and clear terms. With these principles in mind I turn to a consideration of the clause in question.

Counsel for the appellants submitted that there was no real difficulty in construing this provision. It was not appropriate to dissect the provision word by word but it should be approached as a whole giving meaning to words within that context. On this view the purpose was to maintain the supply, that is to keep it at a level which can reasonably be related to that which prevailed at the time of the grant, with the purpose of providing an adequate flow to cleanse and drain the remainder of the lade which ex hypothesi was being already achieved, the adequacy of the flow to be determined by the pursuers and their successors in title acting reasonably. Looked at in this way the provision was perfectly clear and in no way ambiguous. Furthermore, at common law any riparian proprietor is entitled to continue to receive water without diminution in flow or quality. There could be no objection to the importation as a real burden of a duty which was already incumbent upon an upper riparian proprietor.

Counsel for the respondent argued that reference to what may or may not be the common law duties of riparian owners was quite irrelevant to the present case. In the first place what we are concerned with is not any common law duty which may arise but the proper construction of a specific real burden laid down in a disposition. In any event the burden which is purported to be introduced in this disposition is not the same as the common law duty which might be incumbent upon a riparian owner. The obligation in this burden is to maintain a supply of water for specific purposes as opposed to any common law obligation which would only be not to interfere with the natural flow of water. If the present burden is to be obtempered it may be necessary for the defender to take active steps to maintain the supply of water whereas at common law any duty incumbent upon him would only be to refrain from interfering with the existing flow and he could not be responsible for any reduction in flow due to natural causes. The use of the word "maintain" is obscure in that it is not made clear at what level the supply of water is to be maintained. It cannot be said that it was to be maintained at the level existing at the date of the grant as the purpose of the maintenance of supply is restricted to providing an adequate flow to cleanse and drain the remaining parts of the mill lade. Accordingly, the flow as at the date of the grant may have been substantially in excess of what is required under this burden. If the maintenance of the supply is to be tested by the result this also is obscure and ambiguous. What is required is an adequate flow to cleanse and drain the remaining parts of the mill lade running through the village of West Barns. It is far from clear what is meant by drain in this context and in any event it is even less clear to what standard the cleansing and draining is to be achieved. The village of West Barns is not fixed by any boundaries and accordingly over the years if the village expands it may be that the obligation also has to expand in order to take in further parts of the mill lade which will be incorporated within the village. Finally, the words "to the reasonable satisfaction of us and our successors" imports a subjective test not necessarily of the reasonable man and the standard may change depending on who are the successors to the pursuers. On no view can it be said that the reasonable satisfaction of the pursuers or their successors is a sufficiently precise standard to enable singular successors to the defender to ascertain precisely what the extent of their obligation may be.

In my opinion the arguments of the respondent are sound and accordingly the appeal should be dismissed. It is clear that the intention of the burden is not to maintain the existing supply of water as it was at the date of the grant but is only to supply sufficient water for the purposes of cleansing and draining a further part of the lade. It may well be a matter of opinion what is necessary for this purpose and opinions could easily differ. What, however, in my view is conclusive in the respondent's favour is the use of the words "all to the reasonable satisfaction of us and our successors". It cannot possibly be said that any singular successor could ascertain within the four corners of the deed what was the extent of his obligation even if it was permissible to go outwith the deed and to carry out a careful examination of the topography of the ground. What a singular successor would require to do would be to go to the pursuers or their successors in title and ascertain from them what they at the time of the request might consider to be a satisfactory flow of water for the purpose of cleansing the remaining parts of the lade. The answer that might be given to this question could vary from time to time depending upon who are the successors to the pursuers and indeed it is possible that it might vary from time to time through political changes in the constitution of the pursuers. In my opinion it cannot possibly be said that what may or may not from time to time be satisfactory to a disponer or his successors can convey that degree of precision which is necessary in the constitution of a real burden. Looking at the other side of the coin, in my opinion the court should not grant a decree ad factum praestandum in terms which ordain the defender to carry out certain works to the reasonable satisfaction of another party bearing in mind that the only objection which could be taken to the decision of that other party would be that no reasonable person could have failed to be satisfied by what is proposed by the defender. For these reasons I consider that the sheriff and sheriff principal reached the correct conclusion and I would accordingly adhere to their interlocutors subject only to the amendment that the defender's third plea-in-law should not be sustained to the extent of reducing ope exceptionis the clause in the contract.

LORD MCDONALD .—This case involves the interpretation of a clause contained in a disposition by the appellants in favour of the respondent's predecessors in title recorded in the Register of Sasines on 9th August 1982. The subjects conveyed included inter alia a mill lade, and the clause under consideration purports to create a real burden thereon effective upon the parties and their singular successors. It is in the following terms:

"Our said disponees and their foresaids shall, so far as within their powers, maintain the supply of water in the said Mill Lade to provide an adequate flow to cleanse and drain the remaining parts of the Mill Lade through the village of West Barns, not forming part of the subjects hereby disponed, all to the reasonable satisfaction of us and our successors."

I agree with the conclusion reached by both the sheriff and the sheriff principal that this purported obligation is too vague and imprecise in its terms to be enforceable as a real burden on the subjects disponed.

The need for clarity and precision of expression in the constitution and extent of a real burden has been recognised and followed in Scottish conveyancing practice since Tailors of Aberdeen v. Coutts (1837) 2 Sh. & McL. 609. In assessing the impact of this requirement I do not find it necessary to look beyond the speech of Lord Kinnear in Anderson v. Dickie 1915 SC (HL) 79 at p. 84. This makes it plain that a disponer who purports to create a real burden effective against his disponee and singular successors must specify the exact nature and amount of the burden on the face of the title.

Counsel for the appellants sought to draw a distinction between wording which was sufficiently clear to constitute a valid real burden and wording sufficiently clear to establish its extent. In my opinion the standard of clarity required for both purposes is the same. The wording must be so clearly expressed that the extent of the burden can be ascertained by a purchaser without travelling beyond the four corners of his titles (Anderson v. Dickie per Lord Kinnear at p. 85).

Hunter v. Fox 1964 SC (HL) 95 was a case in which the issue was whether the extent of a burden could be clearly ascertained from the language used. The test applied by Lord Reid was whether a reasonable man with a competent knowledge of the English language could have any real doubt about the meaning of the provision read in its context in the disposition. If the words are self-contradictory, or so obscure that one had to grope for the meaning, then the provision is ineffective. It is also ineffective if it is ambiguous or reasonably capable of having more than one meaning.

Whether one applies the criteria of Lord Kinnear or those of Lord Reid I reach the conclusion that the language used in the clause under review is too imprecise to be enforced particularly against singular successors. The basic obligation is to maintain the supply of water in the mill lade, so far as within the powers of the disponees. Had the wording stopped at this point I would have concluded that there was a clear obligation to maintain the existing flow subject to circumstances outwith the control of the disponees such as e.g. drought. That is not, however, the extent of the obligation. It is to maintain such supply of water as will provide an adequate flow to cleanse and drain part of the mill lade which is outwith the control of the disponee. This involves that the supply required may vary from time to time depending upon the condition of that part of the lade which is to be cleansed and drained. The exact nature and extent of the burden is not apparent on the face of the title. The words "cleanse and drain" are also imprecise. There is no specification of the degree of purity required. Standing by itself I would not regard this objection as fatal but the words do not enhance the clarity of the provision.

In my opinion, however, the most potent objection is to be found in the words "all to the reasonable satisfaction of us and our successors". This means that the extent of the burden will vary according to the subjective judgment of the disponers or of their singular successors whoever these may happen to be at any given time. It is impossible for the disponees or their successors to determine on the face of the title the exact nature and extent of the burden imposed upon them.

The pursuers and appellants seem to have anticipated this difficulty when the action was raised. In the first part of the crave they sought an order in the exact terms of the provision contained in the disposition. In the second part of the crave they sought to include in such order detailed specification as to how the alleged obligation was to be implemented, i.e. by insertion of a pipe of a certain construction and size. Before us they obtained leave to amend by deleting the second part of their crave. This suggests that even in the eyes of the pursuers and appellants the wording in the provision standing alone was not sufficiently specific to entitle the court to make an order in terms thereof. With this I agree.

For these reasons I would refuse the appeal.