Scottish Court of Session Decisions

In March 1876 the trustees under the Glasgow Improvement Act 1866 conveyed by feu-contract to James Robertson, mason and builder, Glasgow, certain subjects situated in Glasgow consisting of eight lots of ground. Robertson planned buildings upon lots 1, 2, 3, 4, 5, 6, and 7, in the form of a hollow square facing Main Street, Gorbals Cross, Govan Street, and Muirhead Street. In August 1875 Robertson submitted to the Dean of Guild and obtained approval of plans for buildings on lots 1, 2, 5, 6. In March 1876 he laid before the Court plans for 3, 4, 7, and these were passed. Lot 8 was reserved as an open space in the centre of the square. A pend-close about 9 feet wide through the building on lot No. 7 gave access to this open space, and formed the only cart entrance to a bakery and certain vaults situated facing Main Street, and forming part of the property on lots 1, 2, 3, 4. It entered from Muirhead Street through lot 7 and across the open space, and was, according to the evidence of Robertson in this action, made for the convenience of the cellars and bakery and certain stables. The whole buildings were finished in 1877. There were several other entrances to the open space from the other streets through closes and through shops, but none of the same character or convenience.

In April 1876, before the buildings were finished, James Robertson conveyed to the Union Heritable Securities Company (Limited) lots 1 to 4, comprising the bakery, vaults, &c., and with each of the Said lots a one-seventh pro indiviso share of lot No. 8. This conveyance was in security only (of a cash-credit loan), but the company's right was made absolute in 1884 by a subsequent disposition proceeding on the narrative that he was unable to pay up the credit, and therefore had agreed to convey the subjects absolutely. In January 1877 Robertson disponed to the Scottish Property Investment Company Building Society (Limited) lots 5, 6, and 7. With each of these lots also a one-seventh pro indiviso share in lot 8 was conveyed. This disposition, although ex facie absolute, was truly only in security of debt. In 1884 the Scottish Property Investment Building Society (Limited) being in liquidation, the lots 5, 6, and 7, with the pro indiviso shares attached to them, were sold by the liquidator to a person named Sellars, who re-sold to John Mathie, to whom, with Sellars’ consent, the title was taken direct. The titles of neither 1 to 4 nor of 5, 6, 7 contained any mention of servitude of access by the pend to the former block of buildings. During all the time from 1877 to 1884 the pend had been used by the Heritable Securities Company's tenant as their entrance to the said open space, and for the use of carrying on the business—the bakery requiring a great amount of cartage of flour and bread—and this was conducted through the pend. The vaults had been let part of the time for a large rent.

Shortly after his purchase of the property Mathie announced his intention of building up the pend, and he applied to the Dean of Guild Court for authority to do so. The Union Heritable Securities Company, as proprietors of 1, 2, 3, 4, lodged objections, and eventually brought a note of suspension and interdict in the Court of Session to prevent this. The prayer of the note was to interdict the respondent “from, closing or in any way interfering with the pend or close in the property in Muirhead Street, Gorbals, Glasgow, belonging to the respondent, and from altering the same, as well as from building or erecting any wall or walls or any other obstruction which may in any way interfere with or prevent the free and unrestricted access by the said pend or close of the complainers, their tenants and others, to and from the heritable subjects belonging to the complainers,” &c.

The complainers pleaded—“(1) In respect the said James Robertson built and made the said pend or close as an access to the complainers’ property, and that there is no other access from that side, the prayer of the note ought to be granted. (2) In respect of the use and possession had by the complainers, their tenants and others, of the said pend or close, interdict ought to be granted.”

The respondent pleaded—“(2) The complainers having no right under the titles or otherwise to the use of said pend, the note should be refused so far as the same seeks to vindicate any right thereto.”

A separate question had arisen between the parties as to the use as a laundry by the respondent's tenants of the back part of the basement of the property erected on lot No. 4. Interdict was in the second place asked against this use, but this part of the prayer was not insisted on.

The Lord Ordinary allowed a proof.

The following facts in addition to those above mentioned were proved:—That the properties on the ground floor fronting Gorbal Cross, Govan Street, and Main Street were used as shops. The back part was used as a bakery, and underneath that there were stores or vaults entering from the pro indiviso ground. This bakery occupied almost the whole back part of the complainers’ property on the ground floor. The part that was not so occupied was taken up by two saloons connected with the shops in front. The tenant of the bakery also occupied a small shop in the Main Street frontage with entrance to the open space. The pend through No. 7 was the only cart entrance to the said open space, and if flour was to be brought into the bakery in any quantity this was the only way by which it could be done. The tenants of the bakery since 1877 (the date of the erection of the buildings) had used the pend as a means of bringing in their carts of flour without challenge. The present occupants of the bakery stated that they baked fully 300 sacks of flour a-week, and that they could not carry on their present business if the pend were shut up.

The Lord Ordinary ( M'Laren) pronounced the following interlocutor:—“Grants interdict in terms of the prayer of the note of suspension as amended, and decerns: Finds the complainers entitled to expenses, &c.

“ Opinion.—This action is brought to try the right to the use of a pend or gateway. The complainers and the respondent are respectively singular successors of James Robertson, who purchased the land, on which buildings were afterwards erected, from the trustees under the Glasgow Improvement Act 1866. The property

Page: 436↓

is described in the feu-contract as consisting of eight lots. Robertson laid out the ground for shops and houses to be built in a hollow square, with a gateway or pend running through one of the sides of the square, and giving access to the courtyard. The lot described in the feu-contract as No. 8 formed the courtyard. It was designed to be, and was eventually conveyed pro indiviso to the owners of the other seven lots, to be occupied and used as an open space.

It is proved by the witness M'Gregor that the building-plans of this property passed the Dean of Guild Court at Glasgow in two sections, the first being passed on 5th August 1875, and the second on 6th March 1876.

Mr Robertson, the feuar, explains that the plans approved in 1875 were those embracing the buildings to be erected on lots 1, 2, 3 and 4, which are now vested in the pursuers, and that the plans which were approved in 1876 were those for lots 5, 6 and 7, now the property of the defender. In order, I suppose, to obtain the money necessary for the completion of the buildings, Robertson, in April 1876, conveyed Nos. 1, 2, 3, and 4 to the pursuers in security of a loan, and this part of the block of buildings was proceeded with. Some years later the pursuers accepted an absolute conveyance in satisfaction of the debt due to them, and they are now the proprietors of the four lots 1, 2, 3, and 4, with the buildings thereon erected.

In January 1877 Robertson conveyed the three remaining lots, viz., 5, 6, and 7, to the respondent's author, the Scottish Property Investment Company Building Society. The conveyance was in form absolute, but was intended to create a security for borrowed money. The advances made by the Building Society not being repaid, the society sold the property to Sellars, who re-sold it to the respondent Mathie, who took a title direct from the Building Society, with Sellars’ consent, bearing date October 1884.

According to the evidence of the feuar Robertson, the building of the seven lots was proceeded with simultaneously, and the entire block, with its courtyard and pend, was completed and ready for occupation in May 1877.

Although the subjects through which the pend was formed were the subjects or lots 5, 6, and 7, it is clearly proved that the subjects chiefly benefited by the formation of the pend were lots 1, 2, 3 and 4. The last-mentioned subjects were from the beginning, and are still, occupied as a large baking establishment, consisting of a bakehouse, ovens, storeroom, and salerooms. The bakers received their flour from the carts through the pend, and the vans for delivering the baked bread were loaded inside the courtyard, and were sent out through the pend, which was, in fact, the only way by which vehicles had access to the bakery for the purposes of loading and unloading.

The respondent claims the right to close the pend, and he was proceeding to build it up when he was stopped by the interim interdict. His claim, shortly stated, is that the solum of the pend is conveyed to him in property; that the upper storeys of his tenement are built above the pend, and that the complainers have no express grant of servitude over it. The complainers reply that the pend was appropriated to the uses of the whole tenement or square from the commencement of its occupation in 1877; that the pend is necessary to the convenient occupation of their part of the square, and that the right of access which they claim is a way of necessity or servitude by implied grant within the principle of the case of Ewart v. Cochrane, in the House of Lords, and subsequent cases.

It is a question of fact whether the pend is necessary to the convenient enjoyment of the complainers’ estate; and on this question I am clearly of opinion that the complainers have proved their case.

A part of the complainers’ property was originally laid out and built for a bakery; and while the bakery was no doubt somewhat enlarged, I must hold that even as originally planned a cart entrance was a necessary adjunct to such a business.

That it is necessary, in the actual state of occupation, is proved by the concurring testimony of Govan and Abercromby, the two tenants in succession of the bakery. Govan states that as many as five to six hundred sacks of flour, each weighing 280 lbs., were received in a week, and that the weekly delivery of loaves amounted to not less than 19,000. For the loading and unloading of thêir carts no other entrance existed than the pend; and the pend has always been so used for these purposes. Abercromby gives evidence to the like effect. I do not dwell upon the use of the vaults for storage, and the occupation of the pend in connection with these. The case of the bakery is sufficient on the matter of fact.

Next, on the title,—while it is true that the respondent's authors, the Building Company, were infeft in lots 5, 6 and 7 before the ground was completely built over, yet as the buildings were ready for occupation by Whitsunday 1877, some progress must have been made in January of that year, when the society obtained its title. I must therefore hold that the society received their security as a security over an existing building, in the sense that it was not merely a thing on paper, but a building in course of construction under plans approved by the Dean of Guild, and showing a pend entrance through the security subjects.

It would be a strong thing to say that a heritable creditor could interfere with the legitimate use of his debtor's property, and claim to shut up an access of which he had notice merely because it was not excepted from his sasine. But in point of fact the Building Company from which the respondent derives right never made any objection to the use of the pend by the tenants of the other section, and they could not object now after lying by for six years. Add to this the statement of Robertson, that the pend was shown in the first of the two series of plans as well as the second, and that it was made for the convenience of the front property, the cellarage, and the bakery. I think we have here all the ingredients of a servitude by implied grant, such as will affect a singular successor in the servient tenement; and while we must be careful not to stretch that doctrine, yet, on the other hand, we ought not to shrink from applying it to cases such as the present, which (as I conceive) fall fairly within its scope. I am therefore of opinion that the interdict granted under the first prayer ought to be continued; and I may say, without entering into

Page: 437↓

further detail, that I am of the same opinion with respect to the second prayer. The third prayer has been verbally withdrawn; and on it being struck out interdict will be granted as concluded for, with expenses.”

The respondent reclaimed, and argued—There was here no servitude given in the titles, and there was no sufficient ground for inferring an implied grant of a servitude of the use of the pend given to the other tenements; the case here differed from the other reported cases. Robertson had given an ex facie absolute title to Mathie's predecessor before the complainers’ title became absolute, so that the alleged servient tenement was disponed first in order, while in all the other cases the dominant tenement was disponed first in order.— Gow v. Mealls, May 28, 1875, 2 R. 729; Walton Brothers v. The Magistrates of Glasgow, July 20, 1876, 3 R. 1130; M'Laren v. City of Glasgow Union Railway Company, July 10, 1878, 5 R. 104. There was here no servitude of necessity. There were other means of entrance to the open space behind the complainers’ and respondent's property, and even if there were not, a pend could be made by forming a passage through part of the complainers’ own property, while the respondent was entitled to make the best use of his own property.— Pearson v. Spencer, July 9, 1861, 1 Best & Smith's Rep. 571; Wheeldon v. Burrows, June 17, 1879, 12 L.R., C.D. 31; City of Glasgow Bank v. Nicolson, March 3, 1882, 9 R. 689.

Argued for complainers—There was here a servitude of necessity. The right of passage through the pend was a way of necessity conveyed by implied grant on the principle of Cochrane v. Ewart, January 13, 1860, 22 D. 358, aff. March 25, 1861, 23 D. (H. of L.) 3. If a reasonable and comfortable use of the complainers’ property could only be got by passing through the pend in the respondent's property, then that passage would be allowed. The intention of the proprietor when he made the pend was that it was to be used in common by all the proprietors of the tenements, and it had been so used for some years. No other pend could be made except by breaking down part of the complainers’ property.— Pyer v. Carter, February 21, 1857, 1 Hurlstone & Norman Rep. 916; Watts v. Kelson, January 16, 1871, 6 L.R., C.D. 166; Wheeldon v. Burrows (quoted supra).