Scottish Court of Session Decisions

In this action, at the instance of Mrs Margaret Carlaw or Eddie and her son, proprietors in liferent and fee of a dwelling-house, back house, and yard, in Whitburn, against John and Alexander Forsyth, the pursuers sought declarator that they “ have good and undoubted right to the use and privilege of a passage or entry from the public road or street of the village of Whitburn through the property of the said John Forsyth and Alexander Forsyth, or one or other of them, fronting the said road or street, and on a line with and lying immediately to the east of the pursuers' said dwelling-house and yard, for access to their said back house, lying immediately behind their said dwelling-house; or at least that their pursuers, their predecessors and authors, had and have good and undoubted right of servitude of using and travelling on the said passage or entry, and that for forty years and upwards, or at least for seven years and upwards, as an entry for access to their said back house, and that the defenders have no right to shut out or exclude the pursuers or their tenants from said passage or entry.”

After a proof, the Sheriff-substitute (Home) decerned in terms of the conclusions of the summons against Alexander Forsyth and John Forsyth as his curator ad litem, assoilzieing John Forsyth individually, as having been denuded of the property for sometime previous to the action. The Sheriff (Monro) recalled that interlocutor, “ except in so far as it assoilzies the defender John Forsyth, which part of it is not appealed against by the pursuers: Finds no sufficient evidence of the constitution of a real right or servitude of a passage through the house now belonging to the defender Alexander Forsyth, in favour of the subjects now belonging to the pursuers: Finds it established by evidence that the shutting up in the year 1828 of the passage which previously existed through the premises now belonging to the defender Alexander Forsyth was acquiesced in by the pursuers' predecessors in his said subjects from that time to the year 1859, when the pursuers acquired the subjects, and that the pursuers are thereby barred from insisting that the said passage shall now be reopened: Therefore assoilzies the defender Alexander Forsyth from the conclusions of the summons, and decerns: Finds the defender Alexander

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Forsyth, and his curator ad litem John Forsyth, entitled to expenses of process, but not including the expenses relative to the defender Alexander Forsyth, being insane, or to the appointment of a curator ad litem, to him, and subject also to deduction of £ 3, 3s., and decerns: Allows an account, &c.

“ Note.— This case appears to the Sheriff one of unusual complicity and difficulty. He shall not enter upon any general statement of the facts, that having already been done in previous interlocutors and notes of the Sheriff-substitute and Sheriff Cay, in which the Sheriff almost wholly concurs. Although in form he has recalled the interlocutor of 7th September last, and although he has arrived at a conclusion different from that of the Sheriff-substitute, he shall now briefly indicate the grounds upon which he proceeds:—(1) The first point is the constitution of the alleged servitude. Binny, the common author, disponed in 1794 the eastern subjects to Smart and the western subjects to Waddel, and the entry of both disponees was at Whitsunday of that year. The right given to Smart is absolute and unqualified, and absolute warrandice is given. His subjects are not expressly burdened with any servitude whatever. Besides the ground and houses, he gets ‘an entry upon the east side of the same,’ and in this right of entry he is infeft. On the other hand, the disposition to Binny gives him ‘the privilege of the present entry to the said back house,’ but this privilege, probably from a clerical mistake, did not appear in his infeftment, nor did it appear in the Record of Sasines, until it was embodied in the sasine of his disponee in the year 1805. Binny and Smart themselves were both infeft, and their infeftments were recorded on the same day, 29th August 1794. Thus the titles, per se, were not sufficient to give to the alleged servitude the character of a real right.

It might have happened, however, that such a state of possession had followed on these two dispositions, as would, taken along with the words in the disposition to Waddel, have both proved that the privilege of entry was one through Smart's house, and have established a real right of servitude. But there is no evidence whatever as to the state of possession earlier than the year 1806; the twelve preceding years are in that respect a total blank. Then for twenty-two years, ending in 1828, there is evidence of a certain use of the entry through Smart's house (the east house) by the occupants of the west house. This possession is materially qualified by the fact that the doors at each end of the passage were locked at night by the proprietors of the east house, and never opened until the morning. This possession, however, was finally terminated in the year 1828, by the passage being built up by Forsyth, the then proprietor of the east house. From that time till 1859, a period of thirty-one years, the passage remained closed without dispute, or any attempt to re-open it. In that year, 1859, the pursuers bought the west house, and in the following year raised the present action. In such circumstances, the Sheriff does not think it would be safe to hold that the state of possession, as proved and after 1806, is to be carried backwards to 1794. It is impossible to tell with certainty what changes or transactions may have occurred during these twelve earlier years, especially since it would appear that the passage at the east end of the east house mentioned in the disposition to Smart, and which ever since 1828 has been in full use and operation, was entirely disused for the purposes of passage from 1806 to 1828, although it seems to have been used by Smart (who was a blacksmith) as a temporary deposit of his smithy ashes, and for carrying these away. It may have been that the transit through the east house was permitted in consequence of some temporary arrangement as to discontinuing the east end passage; and when the passage through the house was shut up, in 1828, the east passage was immediately resuscitated, and has ever since been freely used by the occupants of both houses for access to their back ground. There can be no question of a servitude constituted by prescription, the whole range from 1794 to 1828 being only thirty-four years; and the shutting up of the passage in 1828, and subsequent conduct of the parties, grounds a strong presumption of some serious defect or doubt as to the constitution of the alleged servitude. It lay with the pursuers lo establish the servitude, and it humbly appears to the Sheriff that they have not satisfactorily done so.—See as to the Constitution of Servitude, 1 More's Lectures, 593, et seq. (2) The Sheriff farther thinks that there was hero a strong case of acquiescence. The passage would seem to have been built up at a somewhat early hour in the morning, the operation being finished before breakfast; but there is also some evidence, from one of the pursuers' witnesses, that the proprietor of the east house was forewarned of the operation, but he took no legal measures of any kind. One of the pursuers' witnesses speaks to a friendly meeting between him and Forsyth, at which it was supposed they came to a mutual understanding on the subject. The evidence as to Russell complaining or grumbling to other parties, if evidence at all, is truly of no moment. Nearly at the same time with the shutting up of the passage, a house was built on the neighbouring feu to the east, inclosed by a wall, between which and the defenders' feu a sufficient passage was left, and from that time down to the present date this passage has been used by the occupants both of the east and the west properties, the latter being allowed a passage across the back ground of the east property. A door was opened in the back wall of the west house, and a communication was thereby opened with the back house, and an open space which existed between the front and back houses of the west property was built over, whereby the front and back houses were formed into one. This state of things continued, without even a remonstrance, for thirty-one years, down to 1859. During that period William Russell, who was the proprietor of the west subject when the passage was built up, sold the subjects in 1836 to William Johnstone, writer in Bathgate, with the privilege of the present entry to the said back house. In 1845 Johnstone sold the subjects to Alexander Eddie, with a privilege in the same terms. In 1847 Eddie sold to John Sutherland, who had been the tenant when the passage was built up, with a privilege in the same terms. Finally, in 1859, Sutherland conveyed to the present pursuers, but with a change of phraseology, the dispositive clause bearing. ‘with the privilege of the former entry to the said hack house and yard;’ and it may be observed, that none of the previous deeds described the entry as one to the back yard. It appears to the Sheriff that the words ‘present entry’ ought not to ho regarded as a mere careless transcript of the old deeds, but as implying, what they truly mean, namely, a right to the entry existing at the respective dates of the deeds containing them. It is not easy to see how the disponees under such terms could have demanded this long disused

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passage, and sued the disponers under their absolute warrandice. If this be a correct view of the deeds, it affords not merely a strong corroboration of the defence of acquiescence, but is a ground for the substantive plea of no title on the part of the pursuers. It is, in effect, as if an old express right to a passage through the east house had been left out, and a new passage substituted for it. Or it may be viewed as an admission either that the east passage was truly the original passage, or at least was accepted of in lieu of it. The terms of the original grant scarcely imply, in any view of them, an absolute and perpetual right to a passage on the identical site of the passage through the east house, and it is not very difficult to believe in an acquiescence in a change by which a somewhat more circuitous passage, open night and day, was given and received in lieu of a more direct one, which was only available during the day, and was in other respects probably less convenient.—See the subject of Acquiescence pretty fully treated in Professor More's Lectures, vol. ii, pp. 275–6. The present case does not seem analogous to that of Cowan v. Lord Kinnaird, 15th December 1865, 4 Macph. 236, referred to by the pursuers at the debate

It seems also important to observe that during this period of thirty-one years the eastern subject was sold in 1856 by John Forsyth, the heir of the person who shut up the passage, to the present defender, Alexander Forsyth, his younger brother, who appears to have paid a full price for the subject, and therefore to be a singular successor.

The deduction of £3, 3s. from the expenses is made in respect of the failure of the defender to appear to debate the appeal at the diet fixed on his own application.”

The pursuers advocated.

The Lord Ordinary ( Barcaple) pronounced this interlocutor —“As a matter of fact—Finds that Alexander Binny, the common author of the pursuers and the defenders, by disposition dated 9th June 1794, disponed in favour of George Waddel, the pursuers' author, a dwelling-house and back house in Whitburn, and yard at the back thereof, being the subjects now belonging to the pursuers, with the exclusive privilege of a well to the said back house, and also with the privilege of the then present entry to the said back house, the said subjects being therein described as bounded on the east by the subject disponed by the said Alexander Binny to James Smart, smith in Whitburn, the defenders' author, which is the subject now belonging to the defender Alexander Forsyth, through which the pursuers seek to establish that they have right to an entry to their said back house: Finds that at the date of said disposition to George Waddel, the said subject had not been disponed to the said James Smart, but that the said Alexander Binny disponed the same to the said James Smart on 7th July 1794: Finds that there is no direct evidence as to the use of an entry to the said back house until about the year 1806: Finds that from that date until 1828, a passage running through the front house on the foresaid conterminous subject disponed by the said James Smart, was used by the pursuers' authors and their tenants as their entry to said back house, but that there were doors at both ends of said passage, which were always locked or otherwise fastened during the night by the said James Smart or his successors in his said property: Finds, that in 1828, the deceased Thomas Forsyth, father of the defenders, having acquired the said property formerly belonging to the said James Smart, built up the door at the south end of said passage without the previous knowledge or consent of William Russell, who was then proprietor of the pursuers' said subjects, and that since that time there has existed no entry to said back house by or on the line of said passage: Finds that it is not proved that before said passage was so closed there ever was the use of an entry to said back house by the east end of said property originally disponed to James Smart, and now belonging to the defender Alexander Forsyth: Finds that, since said passage was so closed, there has always been the uninterrupted use of an entry to said back house, taken and enjoyed by the pursuers' authors and themselves by the east side of the front house on the said defenders' property, and through the back ground thereof: Finds that, in or about 1859, the said defender, having then acquired right to said property, took down the front house erected thereon, through which the entry to said back house by said passage formerly existed, and that before he rebuilt said house he was warned by a letter from the pursuers' agent that they claimed right to an entry to said back house through the same: Finds that the said defender has since then rebuilt his house with no passage through it for an entry to said back house, but that said entry continues to be got by the east end of the defenders' house: Finds that after the said passage was closed, the said William Russell sold and disponed the said subjects now belonging to the pursuers to William Johnstone in 1836; that the said William Johnstone sold and disponed the same to Alexander Eddie in 1845; that the said Alexander Eddie sold and disponed them to John Sutherland, the immediate author of the pursuers in 1847, and that in each of these dispositions the subjects were conveyed with a right of entry therein described as the privilege of the present entry to the said back house: Finds, that the said John Sutherland disponed the said subjects to the pursuers in 1859, with the privilege of the former entry to the said back house and yard: Finds that, before the commencement of this action, the defender John Forsyth was denuded in favour of the defender Alexander Forsyth, of the said property formerly belonging to the said James Smart: As matter of law—Finds that the pursuers have established the constitution of a servitude of access to the said back house through the property belonging to the defender Alexander Forsyth: Finds that the said William Russell, William Johnstone, and Alexander Eddie, not having taken any steps after the said passage was closed in 1828 to reclaim the use of it, or of an entry in the line thereof, for the exercise and enjoyment of said servitude, and having in place thereof used the access by the east side of the said properly, now belonging to the said defender and through the back ground thereof, and having successively disponed said subjects now belonging to the pursuers with the privilege of the present entry to the said back house, they must be held to have abandoned any right which they or any of them may have had to an entry to said back house by the said passage, or in the line thereof, and not to have included any such right in their respective conveyances of the said property: Finds that, in these circumstances, the said John Sutherland was not, and the pursuers are not now, entitled to claim an entry to said back house through the house now built by the said defender on his property: Advocates the cause: Of new assoilzies the defender Alexander Forsyth from the conclusions of the summons, and decerns: Of new, finds

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the pursuers and avdocators liable to the defender Alexander Forsyth, and his curator ad litem John Forsyth, in the expenses of process in the Inferior Court, but not including the expenses relative to the defender Alexander Forsyth being insane, or to the appointment of a curator ad litem to him, and subject also to deduction of £ 3, 3s.; and also finds the pursuers and advocators liable to the said defender and his curator ad litem in the expenses of process in this Court,” &

The advocator reclaimed.

Clark and Trayner for reclaimers.

Young and Gloag for respondents.

At advising—