Scottish Court of Session Decisions

Introduction

[1] The pursuers are heritable proprietors of subjects at 13-19 Hope Street and 25 Charlotte Square, Edinburgh. The defenders are neighbouring proprietors of adjoining subjects at 7-11 Hope Street. The defenders' property has a fire escape running down the rear of the building the bottom section of which is situated on land belonging to the pursuers. Building warrant for that staircase was granted in September 1983. The pursuers aver that the bottom section was placed on their land only because the defenders' own property had by then been overdeveloped to the extent that their own backyard had been built upon right up to the boundary wall. The pursuers now wish to develop their own property and wish to have the staircase, which they aver occupies seven per centum of the land comprising their backyard, removed. In this action they aver that the defenders have no right or title to the land on which this section of the staircase is situated. They seek declarator that the bottom section of the fire escape constitutes an encroachment on their right of property which they are entitled to have removed and decree ordaining the defenders to do so. The defenders rely on personal bar and servitude rights and also invoke the equitable power of the court to refuse the pursuers' remedy. The case came before me at procedure roll when counsel for the pursuers argued that the defenders' proof should be restricted solely to their equitable remedy claim. The submission on behalf of the defenders was that a proof before answer should be allowed on the whole pleadings.

[2] In presenting her submissions, counsel for the pursuers argued, firstly, that the defenders averments on record relative to the position as it existed between 1938 and 1983 were irrelevant and should be excluded from probation. Counsel submitted that in the absence of any specific averment to the effect that in 1938 or, indeed, at any time prior to 1983, a ladder was in place which gave access on to the pursuers' ground, that fact was not one which arose as a legitimate inference either from the defenders' averments or from the plans produced on their behalf, or from a combination of the two. That being so, the averments relative to the situation prior to 1983 were irrelevant.

[3] The defenders aver that building warrant for the fire escape as presently constructed was granted on 9 September 1983 and that "since said construction the lower part of said escape has been present openly and without objection." The averments relative to the pre-1983 position are less clear. It is first averred in this connection that since in or about 1938 there has been a fire escape present on the defenders' building and that "since said date the fire escape ran from the top floor (third) of the building to a flat roof". It is then averred that in May 1938 permission was granted to the proprietors of the defenders' subjects for the demolition of the existing building and the construction of new buildings at 9-11 Hope Street in accordance with plans submitted to the Dean of Guild Court. The plans are said to have provided for "a fire escape to be installed which was described as an 'emergency open plan staircase.' Said escape came to rest at first floor level on an extension roof. Thereafter provision was made for an iron ladder to enable persons to alight from said roof to the disputed area. The defenders and their predecessors have, accordingly, had in place some means of escape on to the disputed area since 1938". The question which arises is whether that assertion as to the existence of a means of escape on to the disputed area since 1938 which the defenders say arises as a matter of inference is one which is suitably supported by relevant factual averments. I have come to the conclusion that it is not.

[4] The pursuers' pleadings in this connection contain an averment to the effect that the iron ladder shown on the plans approved by the Dean of Guild Court in 1938 as providing a link between the emergency open iron staircase and the ground was not in the position which the defenders' fire escape now occupies. The defenders' pleadings, on the other hand, contain no specific averment either as to the construction of the iron ladder or its position. In particular, there is no averment that it was attached to the same wall as the present fire escape or, indeed, as to which wall it was attached. Counsel for the defenders acknowledged that he was not able to assert that the iron ladder for which provision was made in 1938 actually extended down to the ground now belonging to the pursuers. He argued that it was nevertheless a reasonable inference from the 1938 plan (no.7/6) produced on behalf of the defenders that the fire escape was installed to take anyone using it off the first floor extension and on to the boundary wall from which they would alight on to the pursuers' land.

[5] The plan in question appears to show a vertical iron ladder adhering to the back wall of the building and coming to an end at another wall with a third wall situated to the right. The plan does not, in my view, assist to clarify the situation in respect of the essential issues, namely, whether or not the iron ladder was on the pursuers' side of the boundary wall and whether or how it provided access on to the land belonging to the pursuers and not, for example, on to the narrow passageway between the properties which does not belong to either of the parties. Further, subsequent averments on their behalf do not assist to elucidate the defenders' position in respect of the pre-1983 provision of a means of escape from the first floor flat roof: it is averred that between 1974 and 1980 the Abbey National Building Society who then owned the defenders' premises decided due to the unsatisfactory nature of the fire escape to "extend the extent of said escape from the first floor flat roof and on to the land at the subjects now owned by the pursuers." Thereafter, it is further averred that the detailed plans produced for the 1983 building warrant "indicated that the stair was to be extended downwards aforesaid" and these averments appear to coincide with the description on the 1983 plan (no. 7/8) of the staircase as "new."

[6] In response to criticism of the pleadings in this regard, counsel for the defenders prayed in aid the fact that the present defenders are successors in title to earlier proprietors and the consequent difficulty of obtaining information as to the 1938 situation; a motion for a commission and diligence in this regard had been refused. Similar difficulties, of course, confront the pursuers who are, nevertheless, entitled to clear and fair notice of the case they require to meet and, in particular, what the defenders assert the pre-1983 position to have been. Not only is there no clear indication of the 1938 position but the defenders do not aver that the situation remained unchanged between then and 1983. I do not consider that it is appropriate to assume that it did since the note from the Dean of Guild in 1938 refers to the existence of open space at the back of the defenders' property whereas the pursuers aver that by 1983 the defenders' backyard had been built upon right up to the boundary wall. In these circumstances I have come to the conclusion that the whole averments relating to the pre-1983 situation are irrelevant and lacking in suitable specification and should not be admitted to probation.

Personal Bar and Acquiescence

[7] The defenders aver that the pursuers are, in any event, barred both from the actings and from the acquiescence of their predecessors and themselves from demanding the removal of the fire escape; their sixth plea-in-law is directed to personal bar and their seventh to acquiescence. Counsel for the pursuers submitted that both these pleas should be repelled and the relevant averments excluded from probation. The starting point of counsel's submission was that the staircase complained of was an encroachment by the defenders on to the land owned by the pursuers. Reference was made in this connection to the article on "Possession" in The Laws of Scotland: Stair Memorial Encyclopaedia, Vol 18, para 175:

[8] The staircase with which this action is concerned was said to be a fortiori of the paradigm case in that it has been constructed wholly on the neighbour's land. It was well established that consent is a complete defence, for it is of the essence of encroachment that the intrusion should be without permission of the owner (Duke of Buccleuch v Edinburgh Magistrates (1865) 3M 528). Counsel further submitted that consent was personal to the party granting it and successors in the land are not bound by the acquiescence of a predecessor. The defenders' averments in this regard were accordingly irrelevant. Counsel referred to the classic formulation of the doctrine of personal bar which is to be found in the speech of Lord Birkenhead L.C. in Gatty -v- Maclaine at 1921 S.C. (HL), p.7:

[9] Personal bar as involved by acquiescence arises to similar effect where a person has, by his words or conduct, intimated that he consents to an act which has been done (Gloag on Contract, p.167). In the absence of any averment either as to actings or intimation of consent by the pursuers giving rise to a belief on the part of the defenders, the notion of the plea of personal bar being available on the basis of the actings or acquiescence of their predecessors was one which was manifestly inconsistent with the classic definition.

[10] The question whether a proprietor can be bound by acquiescence by his predecessor in title appears not to be authoritatively settled (Gloag on Contract, p.170). It appears that, as a general rule and in the absence of any speciality, consent is personal to the party granting it and that successors in the lands are not bound by such acquiescence and are free to object even to encroachments which have been in place for a number of years (Ross v Martin (1888) 15R 282; Brown v Baty, (1957) S.C.351). It has been suggested that two qualifications may be made to the general rule: a successor may be bound by the acquiescence of a predecessor if either he had notice of the encroachment or if the encroachment was obvious (Gloag on Contract, p.171 under reference to Muirhead v Glasgow Highland Society (1864) 2M 420 and Colville v Middleton, 27 May 1817, FC). In Gloag's view it may be regarded as decided that, when either of these specialities applies, a singular successor is in no better a position than his author.

[11] Counsel for the pursuers argued that neither of the cases cited by Gloag in support of his proposition involved encroachment and that both dealt with situations which were quite different from that which arose in the present case. Colville was a case of nuisance and did not involve any interference with a real right. Muirhead concerned the contravention of a servitude of light which was a wholly different situation from an encroachment consisting of a substantial structure built wholly on the pursuers' land. It was submitted that the general rule was manifestly consistent with the classic definition of personal bar and that there was no justification for extending the category of exceptions to it. In any event, the law with regard to the exceptions is not considered to be settled beyond doubt (Stair Encyclopaedia, Vol 18, para 176). Reference was made in this connection to the article by Professor Halliday, "Acquiescence, Singular Successors and the Baby Linnet" in (1977) 22JR 89 at 92, 93 in which he supports the general rule and suggests that the two cases cited by Gloag are not true exceptions to it. Counsel urged that I should follow the course adopted by Lord Walker in Brown v Baty and find the defenders' averments of bar irrelevant.

[12] In response, counsel for the defenders submitted that the case involved a complicated dispute on the facts and that it was inappropriate for the court to attempt to decide this issue on the basis of the pleadings alone and without reference to the relevant facts as established in evidence. In any event, the scope of the proof to be heard in relation to the court's equitable power to refuse the pursuers their remedy would be such as to cover all matters on record. The effect of following the course suggested on behalf of the pursuers would thus not involve any restriction on the scope of the proof but only on the extent of the legal argument.

[13] I find that I am not persuaded that it is appropriate to give effect to the pursuers' submissions on this matter. Firstly, it cannot, in my view, be asserted with any certainty that the situation disclosed in the pleadings is one in which the general rule that the consent of the predecessor does not transmit against a singular successor must necessarily apply. In Macgregor v Balfour (1899) 2F 345, the Lord President (at p.352) treats the special cases mentioned by Gloag as being exceptions to a general rule especially where the thing acquiesced in "is of such a character or cost as to be inconsistent with its having been allowed merely during pleasure". The photographs produced in this case demonstrate beyond doubt that the staircase is both visible and obvious. The defenders have averments of knowledge and consent and, although somewhat exiguous, there is also an averment of great cost having been incurred not only in erecting the lower fire escape but also in widening the passageway in order to provide a footpath round the bottom of it. I consider that issues of fact such as the character and cost of staircase and the circumstances surrounding its construction on the pursuers' land in 1983 require to be resolved before a decision can properly be reached as to whether sufficient specialities exist to take the case outwith the ambit of the general rule. Since I am not convinced that the defenders' pleas could not possibly succeed, it would be inappropriate, in my view, to deny them an inquiry on them. In any event, I consider it undesirable to dismiss part of a case only, if the effect of doing so is not to restrict the proof but merely the scope of the argument available to counsel in the light of the facts established. That view is one for which I find support in the approach of Lord Maxwell in Lawrence Building Co. Ltd. v Lanark County Council 1978 SC 30.

Servitude Rights

[14] The defenders aver that in the circumstances they have a servitude right to use the subjects and the structure erected thereon for the purposes of fire escape and their third plea-in-law reflects those averments. Counsel for the pursuers submitted that that plea should be repelled since the supporting averments were irrelevant in the absence of any assertion either of use of the ladder or of egress over the passageway, let alone use for the requisite twenty-year period necessary for the creation of a positive servitude right over land (Prescription and Limitation (Scotland) Act 1973, s.3). It was submitted that if a servitude of fire escape was a recognised servitude it was one which could only be created by express grant.

[15] Counsel for the defenders referred in this connection to Cusine and Paisley on Servitudes and Rights of Way where it is suggested (at para 3.22) that the right to keep an encroachment on a neighbour's ground may be a servitude and, if so, it would impose an obligation on the servient proprietor to refrain from doing anything which would injure or damage the encroachment. An example given by the authors is that the servient proprietor could not interfere with the foundations of a fire escape.

[16] It was accepted on behalf of the defenders that exclusion of the averments relative to the pre-1983 situation would prevent the defenders relying on the doctrine of prescription as a method of creating a servitude right. It was submitted, however, that a servitude of this type can be created by the acquiescence of the servient proprietor. Reference was made in this connection to a statement in Bell's Principles at section 947: "It does appear that, in certain circumstances, a servitude or some similar right...may be constituted by acquiescence." In the immediately preceding passage there is the following fuller statement:

[17] The authors of Cusine and Paisley observe, however, (at 11.37) that there are very few cases on this method of constitution of a servitude and suggest, under reference to the opinion of Lord President Inglis in McIntyre v Orr (1868) 41Sc. Jur. 112 at p.115, that the law will look carefully at the evidence before finding that a servitude has been created in this way. They consider that the doctrine of acquiescence may therefore be regarded as a doctrine of "last resort" in relation to the creation of new servitudes. On the question of whether such a servitude can bind a singular successor they are of the view (para 11.44) that the courts should be reluctant, in the case of servitudes, to extend the categories beyond the beyond the two situations mentioned by Gloag.

(18) As counsel for the pursuers observed, the cases mentioned in the textbooks as examples of the creation of a servitude right by acquiescence relate in the main to water and water supplies. A question may arise as to whether a right of fire escape which, by its very nature, is not exercised on any regular basis may emerge in this way. On the other hand, it may be that in the case of a servitude of fire escape, exercise or use will encompass not only actual use but availability for use should the necessary emergency arise. So far as the right of egress across the passageway is concerned, it appears that if a servitude is constituted, whether expressly or not, the law implies such ancillary rights as are necessary to make the right effectual (Cusine and Paisley 3.01 and 12.124; Central Regional Council v Ferns 1979 SC 136 per Lord Kincraig at p.139). In the circumstances of the present case a right of fire escape would be meaningless without such a right to cross the land on which it stands to reach the passageway.

[19] It is clear that each case requires to be considered on its particular facts and, for the reasons already given in respect of acquiescence amounting to personal bar, I am on the view that this matter too should be decided in the light of the facts and circumstances established at proof and that the defenders should accordingly be allowed an inquiry on this plea.

Parts and Pertinents

[20] The defenders aver that "Separatim and in any event the said fire escape is a 'part and pertinent' of the subjects purchased by the defenders" and in terms of their eighth plea-in-law they seek absolvitor on this ground. Counsel for the pursuers criticised the relevance of these averments and submitted that the said plea should be repelled. In particular, it was submitted that parts and pertinents not being a free-standing right and the defenders not asserting ownership of the ground in question, it was not apparent in what way it was asserted that the fire escape was a pertinent. While not expressly conceding the matter, counsel for the defenders acknowledged that he faced difficulties in this regard.

[21] The issue here concerns 'pertinents' rather than 'parts' since 'parts' are those rights which are exercised over the land itself and 'pertinents' comprise those rights which are exercisable by a landowner by virtue of his landownership but beyond his boundaries and on to his neighbour's property (Stair Encyclopaedia, Vol 18, para 200). The pleadings provide no specification or explanation of the right by virtue of which it is asserted that the staircase on the pursuers' land is a pertinent of the defenders' subjects and in these circumstances I consider that the pursuers' submissions in this regard are well founded.

Result

[22] I shall therefore exclude from probation those averments relative to the pre-1983 situation and also those concerning parts and pertinents. I shall also repel the eighth plea-in-law for the defenders and sustain the ninth plea-in-law for the pursuers. Quoad ultra I shall allow a proof before answer but, in the meantime, the case is appointed to the by order roll for the purpose of enabling parties to regulate the Closed Record in the light of this Opinion.