Scottish Court of Session Decisions

Lord President.—Colonel Trotter of Mortonhall feued a portion of ground to one Peter Mowat, a builder in Edinburgh. Mowat, on a portion of that ground, erected the Braid Hills Hotel, and of another portion of the ground, which had not been utilised for making the Braid Hills Hotel, he disponed ·215 of an acre to William Ritchie Rodger. In the disposition which he granted there was this clause:—“that the said area or piece of ground hereby disponed is so disponed with and under the following conditions and restrictions, viz.:—that no buildings of any kind shall be erected thereon excepting an ornamental greenhouse or summer-house or pavilion not exceeding fifteen feet in height, and that the said area or piece of ground hereby disponed shall not be used otherwise than as a garden or pleasure ground, nor in such a way as may be offensive to or as may affect the amenity of the neighbourhood as a place of residence, which conditions and restrictions before written the said William Ritchie Rodger, by acceptance hereof, binds and obliges himself and his foresaid to implement and observe in all time coming; and the same are hereby declared a real burden and servitude upon and affecting the area or piece of ground hereby disponed in favour of me and my successors, proprietors of the ground on the east and west sides thereof, and as such shall be inserted or validly referred to in all future conveyances and investitures of or relating to the area or piece of ground hereby disponed under pain of nullity.” The piece of ground disponed to Rodger has passed to the petitioners in the present case, the Braid Hills Hotel Company, but it is admitted that the restriction originally imposed upon Rodger was, in terms of the provisions to that effect, duly inserted in subsequent transmissions, and that consequently it is part of the infeftment, and qualifies the infeftment, of the present petitioners.

The present petitioners wish to put up a stable and garage of twenty-five feet high upon the ground in question, and that is opposed by the proprietors of a piece of the ground, which is “the ground on the east and west sides” of the ground originally disponed, their title flowing also from Mowat. Now, it is not disputed that the building proposed to be erected does not, under any construction, fall within the description of “ornamental greenhouse or summer-house or pavilion not exceeding fifteen feet in height,” and accordingly there is no question here upon the quality of the restriction. The only question that has been argued before the learned Dean of Guild, and before us, is the question of title, and that is whether the present objectors have a title to enforce this restriction, which is part of the petitioners' infeftment, and which, it is admitted, strikes at the proposed erection if there is a title in them to enforce it.

It is said there is no title in the objectors, because in the title which they got from Mowat there was no special assignation of the right to enforce these conditions. The learned Dean of Guild has held that no such special assignation was necessary, and I agree with him. The question was mentioned, but not decided, in the case of M'Taggart & Co. v. Harroicer . It is mentioned by Lord Kyllachy in such terms as, I think, indicate not obscurely that his view was that no special assignation in such a case was necessary, but one cannot quote that as an authority upon the point, because he expressly reserved his opinion. I think, however, the matter comes out perfectly clearly in Lord Watson's judgment in Hislop v. MacRitchie . The case of Hislop v. MacRitchie is very familiar to your Lordships, and has again and again been quoted. The point there was whether one of a set of co-feuars could enforce restrictions in the title of another feuar. Now, Lord Watson begins his opinion by saying that everyone of a class of feuars deriving their title from a common superior may have a jus quœsitum. He points out that the title of the superior, where there is always a remaining privity of contract between every generation of the superiors and vassals, is not the same, but the title of one feuar against another must depend upon a jus quœsitum. Inasmuch as this jus quœsitum must necessarily be of the nature of a servitude, he says this:—“It would be unreasonable and contrary to all principle to hold that a feuar was subject to such a servitude, except upon evidence warranting the inference that in accepting a title of his own feu he had it in contemplation, and tacitly agreed, that such a burden should be imposed upon him.” And then he goes on to consider what kind or amount of evidence would shew that, and lays it down, in terms that have again and again been quoted, that mere identity of burden will not be enough, but that there must be something else as well to shew that each feuar consented to be bound in a question with his co-feuar. All that must I think quite obviously be taken subject to the consideration that discussion of what is tacit agreement can never be necessary where you have expressed agreement. You do not need to look for a tacit agreement by a feuar that a burden should be imposed upon him, when you have got it expressly stated in his own title, and, if this had been in a feu-contract instead of in a disposition, I take it that it would absolutely fall within the actual words used in Hislop v. MacRitchie's case. Here you have no need to look for inference, because it is expressly stated that this burden is imposed in favour of, not only the disponer, but his “successors, proprietors of the ground on the east and west sides thereof.”

Well then, does the fact that it is in a disposition make any difference? I think clearly not. I think that that also is shewn inferentially in the case of Hislop v. MacRitchie's Trustees, because one of the cases Lord Watson quotes in examining these matters is the case of Robertson v. North British Railway Co ., which was a case of a disposition, and not a feu at all. It is quite true that Lord Watson indicates that he has doubts whether Robertson v. North British Railway Co . was rightly decided upon one point, but that does not touch the authority of the case as he uses it. He says,—“Assume that that point was rightly decided, then I agree with the case”; and it leads to the result I have indicated. I think Lord Watson also came to say the same thing subsequently in the House of Lords in the case of

Stevenson v. The Steel Company of Scotland, where he says, on p. 94 of the report,—“As regards the second point, whilst it appears to me that there may be a jus quœsitum arising to disponees as well as to feuars, where there are reciprocal obligations between them, I am of opinion that there are no circumstances to be found in the present case from which such a right can be inferred.” Accordingly, I think that really ends the matter. You do not need to speculate here, because you find the right expressed, and the only point is whether the parties here are persons who are proprietors of the ground on the east and west. Well, that is conceded, and that, I think, ends the matter.

The learned Dean of Guild has put his judgment also upon a second ground, that this is a servitude, and that it is a known servitude. As to the general doctrine, I agree. If you find a known servitude in the titles of a servient tenement, I think, in order to shew a title to sue, you have only really got to discover two things. You have first of all got to discover from the servitude itself that there is a proper dominant tenement. Nobody coming forward without something to which he can appeal as a proper dominant tenement would have a title to enforce this right. And then, secondly, over and above that, he must also, of course, shew interest, or else he will fail on the well-known doctrines laid down in the case of Gould v. M'Corquodale, where it was held that the servitude was perfectly well constituted, but that if the pursuers could not shew an interest their right to enforce it fell. But I do not wish to put this judgment, for myself, on that ground, because I think the learned Dean of Guild has not quite correctly read the servitude. I will not say he has not correctly read it, but he has assumed it to be something I do not think he has the right to assume. He has assumed that this is an ordinary servitude altius non tollendi, the limit of height being 15 feet. Now, it is not quite so expressed, and, although I think it is quite arguable that the outcome of it is to that effect, yet I do not think you can assume de plano that it is so; because what is here the prohibition is not against erecting any building over 15 feet, but against erecting any building except an ornamental greenhouse or summer-house or pavilion which is not to be greater than 15 feet. I confess that for myself I should like to reserve my opinion as to whether you can put within the category of known servitude a servitude which, although it begins, so to speak, by being a known servitude, has imposed upon it a qualification or exception which takes it out of the ordinary class. I do not think it is necessary to decide that, because I think there are ample grounds of judgment on the first point.

Lord M'Laren.—I am of the same opinion.

Lord Kinnear.—I agree with your Lordship.

Lord Pearson.—I also agree.