EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Hardie Lord Bonomy	[2011] CSIH 34 A653/07 OPINION OF THE COURT delivered by LADY PATON in the cause COMPUGRAPHICS INTERNATIONAL LIMITED Pursuers and Respondents; against COLIN NIKOLIC Defender and Reclaimer: ______

Pursuers and respondents: Sandison QC; HBJ Gately Wareing LLP

Defender and reclaimer: S. Wolffe QC; Drummond Miller LLP (for McIlroy Hipwell & Dingwall, Solicitors, Dunfermline)

20 May 2011

Introduction

[1] In 2007, the defender purchased land in Eastfield Industrial Estate, Glenrothes. He then asked his neighbours (the pursuers) to remove some air-conditioning pipes and ductwork attached to the southern wall of their factory, overhanging his land and supported by metal stanchions embedded in concrete on his land. The air-conditioning and stanchions had been in position since 1971, and had been clearly visible to any potential purchaser such as the defender.

[2] After some unproductive discussions, the pursuers raised the present action, seeking declarator (i) that they are owners of the pipes, ductwork, and associated support structures, and are entitled to retain them in place "free of interference from the heritable proprietor of the ... solum"; alternatively (ii) that they have servitude rights to retain the pipes, ductwork and associated support structures in place. The defender seeks to have the action dismissed as irrelevant.

[3] After a debate the Lord Ordinary repelled the defender's first plea-in-law challenging the relevancy and specification of the pursuers' averments; refused to dismiss the action; and put the case out By Order to discuss whether a proof on the question of possession was necessary. Before that By Order could take place, the defender reclaimed. The pursuers cross-appealed, contending that the Lord Ordinary should have granted decree de plano.

[4] During the reclaiming motion we were referred to copy title deeds, plans, correspondence and photographs of the pipes and stanchions. The defender holds a disposition in his favour (not lodged as a production). However the defender does not yet have a Land Certificate in his name, as the Keeper of the Land Register has been advised of the present litigation and awaits the outcome. Each party urged the court to resolve the dispute without resorting to a proof.

The conveyancing history

[5] The pursuers' pleadings, read with some of the productions, disclose that in the early 1970s Eastfield Industrial Estate was owned by Glenrothes Development Corporation (GDC). One unit (Unit F) owned by GDC comprised a factory building constructed on a rectangular area lying with its long axis running west-east. Unit F was bounded on the north by Newark Road North; on the east by Unit G owned by GDC; on the south by a pathway and to the south of the pathway, Units H and J owned by GDC; and on the west by a car-park owned by GDC.

[6] In 1971 the pursuers became tenants of Unit F. In the lease granted by GDC in favour of the pursuers, the subjects let (described in the deed and depicted in a plan) included not only the rectangle coloured pink, but also the pathway to the south coloured yellow, together with the buildings and other erections thereon. The pursuers took entry to the existing factory building, and installed a special air-conditioning system to filter out dust from their manufacturing process. That air-conditioning system included pipes and ductwork fixed to the external south wall of the factory and supported by metal stanchions embedded in concrete pits in the pathway. As GDC owned both the rectangular area and the pathway lying to the south, no difficulty arose in relation to the positioning of the pipes, ductwork and stanchions.

[7] The lease contained inter alia the following reservation:

"(FIVE) ... And there shall be reserved to the Landlords and the proprietors or tenants of Factory Units "G", "H", "J" and "K" and others at Eastfield Industrial Estate aforesaid, rights of access over the fire escape route coloured yellow on the said plan as an emergency escape route only declaring that the Tenants shall be bound to keep the said fire escape route free of any obstacle or hindrance of any kind the existing metal supports of the air-conditioning system being excepted."

Thus the pursuers as tenants were obliged to keep the pathway leased to them clear of any obstacles except the existing metal stanchions supporting the air-conditioning pipework.

[8] In 1983, the pursuers purchased the factory from their landlords, GDC. However their title deed ("the 1983 Feu Disposition"), while conveying to the pursuers the rectangular area coloured pink, did not convey to them the pathway coloured yellow. The disposition conveyed to the pursuers:

"ALL and WHOLE that area of ground extending to 313 decimal or one-thousandth parts of a hectare or thereby lying to the south of Newark Road North forming part of the Eastfield Industrial Estate situated in the designated area of the new town of Glenrothes, ... all as the said area of ground is delineated and shown coloured pink on the plan annexed and signed as relative hereto ... Together with the factory premises and others erected on the feu ... But the Feu is so disponed always with and under ... the reservations, burdens, conditions and others hereinafter written each of which shall be operative and remain in force independently of the others videlicet:- ... (EIGHTH) ... there shall be reserved to the Superiors and the proprietors or tenants of Factory Units G, H, J and K and others at Eastfield Industrial Estate aforesaid rights of access over the fire escape route coloured yellow on the said plan as an emergency escape route only declaring that the Feuar shall be bound to keep the said fire escape route free of any obstacle or hindrance of any kind the existing metal supports of the air conditioning system being excepted ..."

GDC remained the owners of the pathway and Units H and J which lay to the south of the pathway. Although the pursuers did not own the pathway, no disputes arose at that stage in relation to the metal stanchions concreted into the pathway and supporting the air-conditioning on the external south wall of the pursuers' factory.

[9] In 2000 GDC conveyed Units H and J to Galgon Industries Ltd ("Galgon"). The conveyance included the pathway. In 2007 Galgon sold Unit H and the relevant section of the pathway to the defender. Following his purchase, the defender contacted the managing director of the pursuers, pointing out that his heritable title included the pathway coloured yellow in the pursuers' Feu Disposition of 1983, and that the pursuers' air-conditioning and supporting stanchions were therefore encroachments on his land. Initially the defender indicated a willingness to dispone the pathway to the pursuers in exchange for another plot of land. However agreement could not be reached. The defender then sent the pursuers an e-mail dated 14 June 2007 stating inter alia:

"... I don't need further Legal Advice regarding Ownership nor the fact that the structure is on my land and it is interfering with my development plans for the yard!!

In view of this I would ask formally that you remove this structure in its entirety before 9 am on Monday 18^th June which is when I commence Groundworks.

... Should the structures not be removed by Monday the 18^th, then I shall arrange for my staff to remove the same, dump it in your carpark and issue you with an invoice for labour, Plant etc ..."

[10] The pursuers responded by raising the present action seeking interdict and interim interdict against the removal of the air-conditioning and its supports. Interim interdict in terms of the Third Conclusion was duly granted. The pursuers also seek declarator in the following terms:

"First For decree finding and declaring that the pursuers are the heritable proprietors of the pipes, ductwork and associated support structures situated on and over the path and verge lying to the south of the south wall of Unit F, Newark Road North, Eastfield Industrial Estate, Glenrothes, and as such heritable proprietors have a heritable and irredeemable right to retain the said pipes, ductwork and support structures resting on and situated above the solum of the said path and verge, free of interference from the heritable proprietor of the said solum.

Two Alternatively to the decree first concluded for, for decree finding and declaring that the Pursuers as heritable proprietors of the subjects known as and forming Unit F, Newark Road North, Eastfield Industrial Estate, Glenrothes have heritable and irredeemable servitude rights to retain the pipes, ductwork and associated support structures situated above and resting on the path and verge lying between the south wall of the said Unit F Newark Road, North, Eastfield Industrial Estate, Glenrothes and the fence erected on ground now belonging to the Defender and forming part of Units H & J Newark Road South".

[11] Those conclusions are supported by the following averments:

Condescendence 4: In terms of the 1983 Disposition, Glenrothes Development Corporation ("GDC") conveyed to the pursuers an area of ground extending to 0.313 hectares as shown on the plan attached to the disposition, together with "the factory premises and all others erected on the Feu". As at the respective dates of the delivery to the pursuers and recording of the 1983 Disposition, the factory premises included (as they had at all times since at least May 1971) the pipes, ductwork and supports condescended upon. As at the same dates, the path and verge below the said pipes and ductwork, and upon which the said supports rested, also belonged to GDC. The 1983 Disposition reserved to GDC and the proprietors or tenants of Units G, H, J and K at the Industrial Estate rights of access over the path and verge condescended upon (which was referred to as a "fire escape route") and obliged the pursuers to keep that route "free of any obstacle or hindrance of any kind the existing metal supports of the air conditioning system being excepted". In the foregoing circumstances, the pursuers acquired by dint of the recording of the 1983 Disposition the dominium utile in and to the said pipes, ductwork and support structures and a heritable and irredeemable right to retain them situated above and resting on the solum of the said path and verge, free of interference from the heritable proprietor of the said solum. Decree of declarator to that effect should accordingly be granted as first concluded for. With reference to the defender's averments in answer, admitted that the pursuers have not sought to rectify the 1983 Disposition or to reduce or rectify any title held by the defender to the land above which the pursuers' pipes and ductwork run, and upon which their supports rest, under explanation that no such reduction or rectification is truly required in order to support the first conclusion of the action. Believed to be true that the defender is and remains the owner of the solum on which the pursuers' said supports rest, and above which their pipes and ductwork run. Quoad ultra the defender's averments in answer are denied. Explained and averred that the pursuers' pipes, ductwork and supports on the one hand, and the path and verge below them on the other, were in the circumstances condescended upon divided into separate heritable tenements by the 1983 Disposition, and no event since then has had the [effect] in law of reuniting them into a single such tenement.

Condescendence 5: Esto the pursuers did not, as a result of the recording of the 1983 Disposition, acquire the heritable and irredeemable right to retain the said pipes, ductwork and support structures situated above and resting on the solum of the said path and verge, which is denied, they have acquired positive servitudes rights (a) of the nature of a ius projiciendi and (b) oneris ferendi, so to do. They acquired the said servitude rights as a result of having possessed them, by way of the installation and retention in situ of the said pipes, ductwork and support structures above and resting on the said solum, for a continuous period in excess of twenty years from 17 May 1971 openly, peaceably and without judicial interruption. The said servitude rights as so possessed are now exempt from challenge in terms of section 3(2) of the Prescription and Limitation (Scotland) Act 1973 as amended. The pursuers are accordingly entitled to continue to retain the said pipes, ductwork and support structures in situ free of interference from the heritable proprietor of the said solum. Decree of declarator to that effect should accordingly be pronounced [as] second and alternatively concluded for. The defender's averments in answer are denied..."

Submissions for the defender and reclaimer

[12] Senior counsel for the defender submitted that the pursuers' action was irrelevant, and should have been dismissed by the Lord Ordinary.

[13] Ownership: The pursuers relied solely upon the 1983 Feu Disposition, and not upon waiver, personal bar, acquiescence, implied grant, or the court's equitable power to refuse to remove a structure. The 1983 Feu Disposition was an unambiguous bounding title. The dispositive clause and plan clearly defined the subjects disponed, which did not include the pipes and stanchions. The reservation in Clause Eighth did no more than impose an obligation on the feuar to keep the fire escape route clear, and did not confer ownership. Even if the reservation could be read as an acceptance by GDC (the then superiors) of the pursuers' entitlement to retain the air-conditioning structure in place, that reservation did not confer ownership on the pursuers such as to bind singular successors. Thus GDC might be bound by the reservation, but singular successors were not.

[14] The pursuers' case so far as based on ownership was misconceived. In general, heritable proprietorship was indivisible, with certain limited exceptions (for example minerals and flatted dwellings): Stair Memorial Encyclopaedia Vol 18 Landownership paragraphs 207, 209. Ownership was a caelo usque ad centrum. That well-established concept militated against layers of ownership, or separate tenements. There was no authority in principle or precedent permitting separate ownership of pipes above a solum. In Crichton v Turnbull 1946 SC 52, there was an unsuccessful attempt to convey ownership in pipes when the land was retained by the seller. In Property Selection & Investment Trust Ltd v United Friendly Insurance plc 1999 SLT 975, abutments built on neighbours' land became the property of those neighbours. Mere contract could not supersede the law of heritable property. Ownership went to the owner of the solum. Ownership also gave the right to remove encroachments on the land: cf Bell's Principles paragraph 940; Miln v Mudie (1828) 6S 967. Thus in the present case, the defender became entitled to have the pipes and stanchions removed by virtue of the deed by which he acquired the land.

[15] Counsel for the pursuers had advanced an argument about "parts and pertinents" (although that argument was not foreshadowed in the pleadings). While the 1983 Feu Disposition contained no express clause, it was accepted that parts and pertinents were implied in any conveyance of heritage: cf Stair Memorial Encyclopaedia Vol 18 Landownership paragraphs 199-200. Proof of possession of parts and pertinents might be necessary to define ownership only if the title was ambiguous, and/or was not a bounding title: cf Halliday, Conveyancing Law and Practice (2^nd ed) Vol 2 paragraphs 33-38 and 33-39; Gordon v Grant (1850) 13D 1, pages 5 and 7; Gordon, Land Law (3^rd ed) paragraphs 3-13 to 3-16; North British Railway Company v Mags of Hawick (1862) 1M 200, at pages 201-203; Thomson v Grieve (1688) 2 Brown's Suppl 118; Royal and Sun Alliance Insurance v Wyman-Gordon Ltd 2001 SLT 1304, paragraphs [18]-[20]. It was therefore accepted that, if the present case involved an ambiguous title, there was scope for an argument about parts and pertinents, and a proof before answer on the question of possession might be required. However the title in the present case was an unambiguous bounding title: cf the title with plan attached in North British Railway Company v Moon's Trs (1879) 6R 640. It was well settled that a parts and pertinents clause could not be relied upon to acquire ownership of heritable property beyond the bounds of the title: yet that was what the pursuers were trying to do. Cooper's Trs v Stark's Trs (1898) 25R 1160 was distinguishable in that there the majority did not characterise the title in question as a bounding title. Auld v Hay (1880) 7R 663 dealt with the different question of whether a title was ambiguous, and whether any ambiguity was capable of being resolved by proof of possession. Nisbet v Hogg 1950 SLT 289 was concerned with a title which was not a bounding title: thus the question of possession for the prescriptive period could be relevant. Thus the cases of Cooper, Auld and Nisbet were distinguishable, and were certainly not authority for the proposition that a parts and pertinents clause could alter the extent of a bounding title. The Lord Ordinary should have determined the character of the pursuers' title (i.e. whether or not it was a bounding title) as a matter of law. He erred in purporting to reserve that question until after proof of the pursuers' possession. The Lord Ordinary should have held that the 1983 Feu Disposition was an unambiguous bounding title, and should have dismissed the pursuers' case as irrelevant, rather than repelling the defender's first plea-in-law, reserving all other questions and ordering a proof on the issue of possession.

[16] Servitude rights: The pursuers had no servitude rights. The pipes and stanchions were not owned by the pursuers (the alleged dominant tenement) and therefore no servitude rights, either positive or negative, could be created. No servitude of necessity could be claimed, as there was nothing to preclude the pipes being relocated on the roof of the factory building.

[17] Furthermore, a servitude created by law (and not by agreement) had to fall within a class of servitudes known and recognised in Scots Law: Alexander v Butchart (1875) 3R 156, at pages 157, 159, 160; Dyce v Hay (1852) Macq 304; Romano v Standard and Commercial Property Securities Ltd 2008 SLT 859, paragraphs [23]-[24]. That was not the case here.

[18] The alleged servitude of projection: The institutional writers made no mention of a servitude of projection: for example, Bell's Principles at paragraphs 1000 and 1004 discussed stillicide (eavesdrop), but not projection. The pursuers relied upon textbooks, namely Ross, Servitudes in the Law of Scotland (1933) page 70, and Cusine and Paisley, Servitudes and Rights of Way (1998) paragraph 3.22. But neither passage was authority for the proposition that such a servitude was recognised in Scots law. The Lord Ordinary had erred in concluding that there was such a servitude, and also in concluding that there could be incremental development of such a servitude so as to include not only the overhanging item itself, but also supporting posts concreted into the neighbour's ground. Such supporting posts were outwith the ambit of any servitude of projection, if recognised at all in Scots law.

[19] The alleged servitude of support: Any servitude of support recognised in Scots law was restricted to the context of urban buildings, especially tenements, and the obligation of the lower proprietor to maintain the built structure upon which the building of the upper proprietor rested. There was no authority vouching a servitude of support by posts or stanchions fixed into the solum of the neighbouring land. Reference was made to Bell's Principles at paragraph 1003; Stair Inst 2.7.6; Stair Memorial Encyclopaedia Vol 18 Landownership para [484]; Troup v Aberdeen Heritable Securities and Investment Co Ltd 1916 SC 918; Dalton v Angus (1881) 6 App Cas 740. In any event, no servitude of support could be created in respect of projections owned by the owner of the servient tenement (in this case, the defender). The Lord Ordinary erred in holding that any such servitude could exist.

[20] In all the circumstances, the reclaiming motion should be allowed, and the pursuers' action dismissed as irrelevant.

Submissions for the pursuers and respondents

[21] Senior counsel for the pursuers submitted that the Lord Ordinary was correct not to dismiss the action. His only error was not to have gone further, by granting decree de plano. The reclaiming motion should be refused, the cross-appeal allowed, and decree de plano granted.

[22] Ownership: The pursuers' primary position was that they were owners of the pipes, ducts and stanchions by reason of the 1983 Feu Disposition. These structures were part of the factory building erected on the feu. The pursuers did not accept the absolute and inflexible proposition advanced by the defender under the brocard a coelo usque ad centrum, namely that a structure overhanging land could not be owned separately from the ownership of the land. None of the authorities cited by the defender vouched that absolute proposition. On the contrary, it was quite possible to have separate legal tenements. Separate legal tenements could be implied by law (for example the Crown grant of land excluding regalia); or constituted by agreement: Stair Memorial Encyclopaedia Vol 18 Landownership paragraph 209. A separate conventional tenement could be carried by a "parts and pertinents" clause to another owner. Flatted dwellinghouses and minerals were examples of separate tenements: cf Stair op cit paragraph 212; but there was nothing to suggest that the category was restricted to those two examples. Any stratum (not necessarily minerals) could be separately owned. There was no authority prohibiting separate ownership of the pipes. There was no rule of law that property above ground (whether touching the ground or not) must belong to the owner of the ground. In practice, there were many projections over others' land, such as windows, cornices, arches above pends, and passageways above lanes. The law had developed pragmatically. Property Selection & Investment Trust Ltd, cit sup, was simply an illustration of the general principle that an encroachment (abutments), without agreement, resulted in the abutments acceding to the solum and belonging to the neighbour. But in the present case, the question was whether separate conventional tenements could be created. Similarly the circumstances in Crichton v Turnbull, cit sup, were not relevant to the present case. A field or rubble drain was simply an arrangement of stones as a result of which water could percolate more easily: in other words, a rearrangement of the land to enable water to percolate through it. No-one suggested that the structures had acceded to the solum. Crichton was therefore authority only for the proposition that rubble drains could not be made the subject of a separate conventional tenement.

[23] Accordingly decree in terms of the First Conclusion should be granted.

[24] Esto the 1983 Feu Disposition was ambiguous, the extent of the grant should be explained by prescriptive possession. The Lord Ordinary had concluded that a proof on possession might be necessary, and in so doing he had in effect held that the pursuers' title was not a bounding title but was ambiguous (for only if the construction of a deed as a whole left no doubt about the extent of ownership could a title truly be a bounding title). Ambiguity might be considered to arise in the 1983 Feu Disposition for three reasons. (a) The subjects disponed to the pursuers included not only the factory premises, but "all others erected on the feu". As the air-conditioning was physically fixed to the side of the factory and served the factory, the question arose whether that air-conditioning was included in the grant. Properly viewed, the pipes, ductwork and stanchions acceded to the factory whose purpose they served: cf Stair Memorial Encyclopaedia Vol 18 Landownership paragraphs 578, 579. The three elements required for accession were present, namely (i) physical attachment; (ii) functional subordination; and (iii) permanence. (b) The second reason for ambiguity in the 1983 Feu Disposition was the reservation to the superiors and proprietors or tenants of Units G, H, J, and K and others of rights of access over the fire escape route coloured yellow. That reservation implied that GDC had intended to give the pursuers possession of the structure on the pathway coloured yellow. (c) The third reason for ambiguity was the implied "parts and pertinents" clause. Parts and pertinents arguably included the pipework and stanchions.

[25] If the court took the view that the 1983 Feu Disposition was ambiguous, the question at issue was not one of simple construction, of finding the true construction of the 1983 deed. Rather it was a question of finding a meaning consistent with possession. Reference was made to Auld v Hay (1880) 7R 663, pages 668, 672, 677, 680, 681; Cooper's Trs v Stark's Trs (1898) 25R 1160, pages 1162, 1166, 1167, 1169, 1172; Nisbet v Hogg 1950 SLT 289, at page 293; Royal and Sun Alliance Insurance v Wyman-Gordon Ltd 2001 SLT 1304 paragraphs [18]-[19]. The pursuers did not peril their case solely on the parts and pertinents clause: if they were correct in their contention that the pursuers "acquired by dint of the recording of the 1983 Disposition the dominium utile in and to the said pipes, ductwork and support structures", as averred in Article 4 of Condescendence, then the pursuers succeeded. Significantly, the defender did not claim ownership of the pipework and stanchions. He did not rely upon the doctrine of accessio. His attitude was simply that the pipes and stanchions were clutter on his land, and should be removed. The pursuers, on the other hand, did claim ownership of the pipework. Their ownership extended to the pieces of solum into which the supporting stanchions were concreted.

[26] Servitude rights: Counsel for the pursuers submitted that even if the pursuers were unable to establish ownership of the pipes, ductwork and stanchions, they had acquired servitude rights in relation to them. The Lord Ordinary had reached the correct conclusion, and was right to repel the defender's preliminary plea attacking the pursuers' averments relating to servitude rights.

[27] The structures projected over the defender's land and rested on the defender's solum. The pursuers relied upon (i) a servitude of projection - jus projiciendi - and (ii) a servitude of support - oneris ferendi.

[28] Jus projiciendi: There was no reason in principle or precedent why a servitude jus projiciendi should not form part of the law of Scotland. Such a servitude would not rob the landowner of his ownership: contrast with the circumstances in Dyce v Hay (1852) 1 Macq 305. According to Bell's Principles paragraph 979, where it was obvious from the physical state of the ground that some unusual right was being claimed, that could constitute a valid servitude. The law was flexible and pragmatic. In the present case, a prudent purchaser considering the acquisition of Unit H would have noticed air-conditioning units resting on struts on the land he sought to purchase. They were permanent structures, clear and obvious (unlike, for example, a servitude of passage). Accordingly the present case passed the test in Bell, for two reasons: (i) Scots law recognised a servitude right of projection; and (ii) a prudent purchaser would have noticed the structures.

[29] A right of projection was recognised in authorities such as Justinian's Digest, 8.2.2; Vinnius, Comm ad Inst, 2.3.1 (1659); Van Leeuwen, Cens For, 1.2.19; Van Leeuwen, Commentaries 2.20.7; Voet, Commentarius and Pandectas, 8.2.3; The Law of South Africa (CG van der Merwe and MJ de Waal), Vol 24 para 417. The Scottish texts viewed the concept of a servitude of projection favourably: see, for example, Cusine and Paisley, Servitudes and Rights of Way (1998) para 3.22, where the authors noted no objection in principle to the recognition of such a servitude.

[30] Oneris ferendi: Counsel for the pursuers submitted that there was no basis, in principle or precedent, to suggest that the servitude oneris ferendi was available only for flatted dwellinghouses, or as one element in a built-up environment obtaining support from another element of the built-up environment. The Lord Ordinary was correct to conclude, in paragraph [31] of his opinion, that a more general servitude of support was recognised in Scots law. Reference was made to Stair, Inst 2.7.5-6; Bell's Principles paragraph 1003; Dalton v Angus (1881) 6 App Cas 740, pages 793-4; Rankine, Landownership pages 495-500; Troup v Aberdeen Heritable Securities Co 1916 SC 918, pages 928-9.

[31] Combination of servitudes: The pursuers claimed a combination of the right to project and the right of support. However if it proved impossible to have the two servitudes together, the pursuers chose the servitude of support, on the view that the air-conditioning acceded to the building and was functionally subordinate to it, and the vertical stanchions simply supported it.

[32] The cross-appeal: Counsel for the pursuers submitted that there were no substantial factual questions in dispute. A proof about possession was unnecessary. The defender had no real response to the pursuers' averments: cf Ellon Castle Estates Ltd v Macdonald 1975 SLT (Notes) 66; Gray v Boyd 1966 SLT 60. Accordingly the pursuers were entitled to decree de plano in terms of the First and Third, or alternatively the Second and Third Conclusions, on the basis of an unambiguous 1983 Feu Disposition; or alternatively, esto the title was ambiguous and possession had to be taken into account, there were sufficient averments relating to possession on record, and a proof was unnecessary.

[33] In conclusion, counsel invited the court to refuse the reclaiming motion; allow the cross-appeal; and grant decree de plano.

Final reply for the defender and reclaimer

[34] Senior counsel for the defender responded by stating that, contrary to the pursuers' counsel's submissions, it was the defender's contention that he owned the air-conditioning and stanchions. The defender's position was made clear in the pleadings by the general denial of the pursuers' averment in Article 4 of Condescendence that "by dint of the recording of the 1983 Disposition, the dominium utile in and to the said pipes, ductwork and support structures" was acquired by the pursuers. As for the cross-appeal, it should be refused. Even if the court agreed with the pursuers on the question of ownership, the pursuers still had to rely upon servitudes of projection and support, and that would require a proof about possession.

Discussion
Servitudes
[35] We agree with the Lord Ordinary's conclusion that Scots law does, in appropriate circumstances, recognise servitudes of projection and support (jus projiciendi and oneris ferendi). As Stair Inst 2.7.5 explains:

"There may be as many [servitudes] as there are ways whereby the liberty of a house or tenement may be restrained in favour of another tenement; for liberty and servitude are contraries, and the abatement of the one is the being or enlargement of the other."

Bell's Principles at paragraph 979 notes:

"What shall be deemed servitudes of a regular and definite kind is a secondary question, as to which the only description that can be given generally seems to be, that it shall be such a use or restraint as by law or custom is known to be likely and incident to the property in question, and to which the attention of a prudent purchaser will, in the circumstances, naturally be called."

The House of Lords in Dyce v Hay (1852) 1 Macq 305 at page 312 acknowledged that:

" ... The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind ..."

[36] References to a servitude of support can be found in the works of institutional writers, textbooks, and reported decisions: see Stair, Inst 2.7.5-6; Bell's Principles paragraph 1003; Dalton v Angus (1881) 6 App Cas 740, pages 793-4; Rankine, Landownership (4^th ed) pages 495-500; Troup v Aberdeen Heritable Securities and Investment Co 1916 SC 918, pages 928-9. Counsel for the defender submitted that a servitude of support was confined to building by building support, and so could not apply to the support of a structure by posts affixed to the ground. However a servitude of support by pillars or posts in the ground is expressly acknowledged in Troup, cit sup at page 928, and in Justinian's Digest 8.2.33. Moreover such a servitude is consistent with what is described in the passages in Stair, Bell and Dalton v Angus, cit sup. Accordingly in the present case a servitude of support could, in our view, be created by the metal stanchions embedded in the defender's ground, providing support for the pursuers' pipes and ductwork.

[37] A servitude of projection has been less frequently discussed in Scots law texts and decisions to date, possibly because of the careful supervision and restriction provided by planning law and building control. Nevertheless we agree with the Lord Ordinary that "there is no reason in principle why the law of Scotland cannot recognise a servitude of overhang". Roman law recognised the existence of a jus projiciendum: Justinian's Digest 8.2.2; Vinnius, Comm ad Inst 2.3.1 (1659) ("permitted to project beyond one's walls so a structure protrudes above the land of another, though it does not rest thereon"). The Romano-Dutch legal system, which has influenced Scots law, also recognises such a servitude: Van Leeuwen, Cens For 1.2.19 (suggrundiorum, a reference inter alia to projecting eaves); Van Leeuwen, Comm 2.20.7 (the servitus projiciendi, namely the right of having a building, such as a balcony, bow-window, or gallery, projecting over the land of another, without actually resting on such land); Voet, Comm ad Pandectas 8.2.3 (1716) (... servitude ... which allows a neighbour to have his beam projecting beyond his wall, so that it overhangs or projects over his neighbour's court, but is not supported by his neighbour's wall); The Law of South Africa (CG van der Merwe and MJ de Waal) Vol 24 para 417 (a servitude of projection, jus tigni projiciendi vel protegendi, is the right to have a balcony or another projection over a neighbour's land). Scottish texts consider that a servitude of projection should be recognised: see, for example, Ross, Servitudes in the Law of Scotland, pages 70-72; Cusine and Paisley, Servitudes and Rights of Way (1998) para 3.22; Reid and Gretton, Conveyancing 2009 page 104.

[38] Counsel for the defender contended that, while there might be some scope for unusual or novel servitudes in the context of conventional servitudes, those implied by law must be limited to categories recognised by Scots law, and that did not include a jus projiciendi: cf dicta in Romano v Standard Commercial Property Securities Ltd 2008 SLT 859, paragraphs [23] and [24]. However in our view the more cautious approach advocated in relation to servitudes implied by law is, as explained in Romano, "to prevent purchasers from being taken by surprise by a claim of some unusual and unwritten burden affecting their property". In our view it is highly unlikely that any physical projection over another's ground would not be seen by a potential purchaser. Certainly in the present case, there was no question of the defender being taken by surprise: the pipes, ductwork and stanchions were permanent, visible, and obvious when he purchased the land. Moreover in order to constitute a servitude by the operation of prescription, the claimant must establish possession or use as of right, with the servient owner's full knowledge: cf Macnab v Munro Ferguson (1890) 17R 397; McGregor v Crieff Co-operative Society Ltd 1915 SC (HL) 93; Stair Memorial Encyclopaedia Vol 18 Landownership paragraph 460. In the present case therefore the pursuers would not succeed unless they could prove the requisite knowledge on the part of the relevant servient owners. Accordingly we do not accept the defender's contention that a jus projiciendi could not be constituted or recognised by Scots law.

[39] Thus Scots law would, in our opinion, recognise both a servitude of support by posts or stanchions, and a servitude jus projiciendi. We see no reason why Scots law would not recognise the two servitudes arising from one particular set of circumstances, as in the present case.

The 1983 Feu Disposition

[40] We now turn to examine the 1983 Feu Disposition. We differ from the Lord Ordinary in that we consider the 1983 Feu Disposition to be a clear and unambiguous bounding title: cf Royal and Sun Alliance Insurance v Wyman-Gordon Ltd 2001 SLT 1304 paragraph [18]; North British Railway Co v Moon's Trs (1879) 6R 640, pages 651, 654, and 657; and contrast with the majority view about the title in Cooper's Trs v Stark's Trs (1898) 25R 1160. The title is not, in our opinion, "susceptible of a construction consistent with the prescriptive possession", unlike the ambiguous or indefinite titles in Auld v Hay (1880) 7R 663 and Nisbet v Hogg, 1950 SLT 289. The plan referred to in the dispositive clause of the 1983 Feu Disposition is not qualified as being merely "demonstrative and not taxative". Accordingly the plan and its measurements are intended to be treated as accurate and binding upon the parties. The plan gives clear and precise boundaries and measurements: cf North British Railway Company v Magistrates of Hawick (1862) 1 M 200. The area coloured pink is shown, as is the pathway coloured yellow. The southern boundary of the area coloured pink is clearly depicted as, inter alia, the south wall of the factory building. Precise measurements are given for each boundary (north, south, west and east). There is no boundary where the conveyancer fails to "achieve sufficient precision to enable that boundary to operate in a manner excluding recourse to prescriptive possession in a question with a neighbouring proprietor": contrast with Royal and Sun Alliance Insurance v Wyman-Gordon, 2001 SLT 1304, paragraph [19]. The pathway over which the pipes and ductwork hang, supported by stanchions, is not included in the dispositive grant. The phrase "all others erected on the feu" cannot, in our view, enlarge the grant of ownership given to the pursuers. The reservation in Clause Eighth may, in our opinion, represent an error by the conveyancer, or alternatively an express obligation imposed upon the pursuers ob majorem cautelem to ensure that they do not, for example, seek to strengthen the stanchions supporting their pipes by erecting further cross-struts across the pathway thus impeding pedestrian passage; but the reservation does not enlarge the grant of ownership given to the pursuers nor, in our view, render the 1983 Feu Disposition ambiguous such that it requires explanation by proof of possession. In the result therefore the defender is, in our opinion, clearly the owner of the whole of the solum of the pathway coloured yellow in the plan; and the pursuers are clearly the owners of the whole of the solum of the rectangular area coloured pink in the plan.

[41] That said, a building may be constructed or altered in such a way that it has its foundations properly contained within the boundaries of the solum as defined in the unambiguous bounding title, and yet have an upper part (or parts) of the building protruding at a height above the ground as an encroachment into the neighbouring owner's airspace. Examples include balconies and bow-windows. The neighbouring owner might not object to such protrusions into his airspace; alternatively he might demand that the encroachments be removed: cf Bell's Principles paragraphs 940-942; Miln v Mudie (1826) 6S 967; Romano v Standard and Commercial Property Ltd 2008 SLT 859.

[42] In our opinion, having considered the copy title deeds, plans, correspondence and photographs, the 1983 Feu Disposition created such a situation. The disposition contained an implied grant of parts and pertinents: cf Stair Memorial Encyclopaedia Vol 18 Landownership paragraphs 199-200. Bell's Principles paragraph 739 defines parts and pertinents as:

"... such accessory parts, and fixtures, and appendages to land, or houses, or such separate possessions, or privileges, as accompany the occupation and use of the land, or have for forty years been so enjoyed along with it [emphasis added]."

The pipes and ductwork constitute, in our view, a heritable fixture of the factory, and were therefore carried by the 1983 Feu Disposition, giving the pursuers ownership of the pipes and ductwork.

[43] We accept, of course, the well-settled strictures applicable to parts and pertinents in a bounding title, namely that no possession can establish any rights in lands lying outwith the bounds specified in the grant: cf Erskine II vi 3; Stair II iii 26. Importantly however in the present case the heritable fixture attached to the pursuers' building is at some height above the ground: contrast with Crichton v Turnbull 1946 SC 52 (pipes embedded in the solum), and Property Selection & Investment Trust Ltd v United Friendly Insurance plc 1999 SLT 975 (rock anchors embedded in the solum). In our opinion therefore this case cannot be characterised as an attempt to acquire land or other heritable rights beyond the stipulated limits of a clear and unambiguous bounding title: contrast with Gordon v Grant (1850) 13D 1 (an attempt to claim a right of common property in lands lying beyond the limits of the parish described in the owner's bounding title); North British Railway Company v Magistrates of Hawick (1862) 1M 200 (an attempt to claim a right to the channel or alveus of an adjoining river beyond the boundary marked on the plan). Rather this case is one where a building's heritable fixture protrudes to some extent as an encroachment into a neighbour's airspace.

[44] Thus we do not accept that the pipes and ductwork owned by the pursuers could remain in the neighbouring airspace as of right, constituting a "separate heritable tenement": cf the reservations in relation to such a concept in Reid and Gretton, Conveyancing 2009, page 172; Reid, The Law of Property in Scotland (1996) paragraph 212. On the contrary, the neighbouring proprietor could demand the removal of the encroachment: cf Bell's Principles paragraphs 940-942; Miln v Mudie (1826) 6S 967; Roman v Standard and Commercial Property Ltd 2008 SLT 859. The attitude and actions of GDC and their singular successors during the years from 1983 to 2007 then become an important and possibly determinative factor in the resolution of the current dispute.

[45] If GDC and their singular successors, qua owners of the pathway and (by operation of the maxim a coelo usque ad centrum) the airspace above the pathway, did not seek to have the pipes and ductwork removed or altered, then in our view a servitude right - a jus projiciendi - could, subject to proof of the necessary facts, be constituted by the encroaching pipes and ductwork having remained in position in the neighbouring airspace for the prescriptive period of twenty years without challenge or objection: cf section 3(2) of the Prescription and Limitation (Scotland) Act 1973; Stair Inst 2.7.5; Bell's Principles paragraph 979; Cusine and Paisley, Servitudes and Rights of Way (1998) paragraph 3.22; Ross, Servitudes in the Law of Scotland (1933) page 71; Troup v Aberdeen Heritable Securities Co 1916 SC 918, Lord Guthrie at page 929. The pipes and ductwork owned by the pursuers would constitute the dominant tenement, while the defender's land and airspace would become the servient tenement.

[46] Questions would then arise about the status and ownership of the supporting stanchions. In 1983, when GDC transferred ownership of the rectangle coloured pink to the pursuers, but retained ownership of the pathway coloured yellow, the stanchions (embedded as they were in concrete in the pathway) may - depending on degrees of severability and/or attachment - have remained in the ownership of GDC on the basis of inaedificatum solo, solo cedit, and accessio. In our opinion, therefore, GDC and their singular successors could have attempted to remove or alter the stanchions qua owners thereof, although they might have faced arguments from the pursuers based on implied contract or acquiescence. As it turned out, neither GDC nor their singular successors in title took any steps to alter or remove the stanchions during the 24 years following upon the grant of the Feu Disposition in 1983. Only in 2007 did a new owner, the defender, seek to take such steps. In those circumstances, we consider that a servitude of support by the stanchions - oneris ferendi - could, subject to proof of the necessary facts, have been constituted by the maintenance of the stanchions in place without objection for over twenty years: cf the Prescription and Limitation (Scotland) Act 1973 section 3(2); Stair Inst 2.7.5-6; Bell's Principles paragraph 1003; Dalton v Angus (1881) 6 App Cas 740; Troup v Aberdeen Heritable Securities and Investment Co Ltd 1916 SC 918, Lord Guthrie at page 929; Stair Memorial Encyclopaedia Vol 18 Landownership paragraph 484; Rankine, Land Ownership (4^th ed) pages 495 to 500. The defender's pathway and the stanchions concreted into the pathway would form the servient tenement supporting the dominant tenement, namely the protruding part of the pursuers' factory building (the pipes and ductwork).

Decision

[47] We consider that an inquiry into the facts is necessary in this case. The opinion which we have given is dependent upon a consideration of papers only - including pleadings, notes of argument, copy title deeds, plans, correspondence and photographs. But we acknowledge that there may be questions of mixed fact and law (for example, relating to degrees of severability or attachment of certain items) which can be properly determined only after the facts have been established. We also acknowledge that the pursuers' current pleadings do not entirely reflect the approach which we have taken.

[48] As the Lord Ordinary repelled the defender's first plea-in-law and was considering ordering a proof simpliciter, whereas we consider that a proof before answer (all pleas standing) is necessary, we shall allow the reclaiming motion; refuse the cross-appeal; recall the Lord Ordinary's interlocutor; and put the case out By Order before this bench to discuss inter alia expenses, further procedure and questions of amendment.

Addendum

[49] During the reclaiming motion, Lord Bonomy drew attention to section 77 of the Title Conditions (Scotland) Act 2003, which provides:

"Positive servitude of leading pipes etc over or under land

(1) A right to lead a pipe, cable, wire or other such enclosed unit over or under land for any purpose may be constituted as a positive servitude.

(2) It shall be deemed always to have been competent to constitute a right such as is mentioned in subsection (1) above as a servitude."

Counsel for the pursuers indicated that section 77 had been considered, and might be relied upon if the case were remitted back to the Outer House. Commentators have observed that section 77 may assist in resolving the current dispute: see Reid and Gretton, Conveyancing 2009, page 105.