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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malcolm v. Louttit [1868] ScotLR 6_134 (25 November 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0134.html Cite as: [1868] ScotLR 6_134, [1868] SLR 6_134 |
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Page: 134↓
A feuar, bound by his feu-right to construct a certain passage along his feu for behoof of neighbouring feuars, being called on to construct the same, alleged that fulfilment of his obligation was impossible without taking down part of the parapet of a public bridge, which operation the magistrates refused to sanction. Time being given for the magistrates to appear for the public interest, and they not appearing, held that the feuar was bound to fulfil his obligation.
In 1856 there were exposed for public sale certain lots of building ground at Bridge Street of Wick. The articles of roup contained this obligation— “and the party feuing the southmost lot shall be bound to erect and put up a stair eight feet six inches in breadth, including the parapet or iron railing, at the south-east corner of that lot, and to lay a sufficient pavement along the whole south side of said lot, and between it and the river, and to have the pavement and stair properly fenced with a parapet wall or iron railing at the side next the river, to form an access from the pavement in' Bridge Street in front of the said lot to the lane called Kirk's Lane, which is to be continued to the river side, to be used as a common thoroughfare, and to be upheld and maintained in good repair in all time coming by the feuar of said lot, and his heirs and successors, at their own expense.” Louttit purchased four of the lots, including the southmost, and iu the feu-disposition which was granted to him there was inserted a clause of obligation in terms of the conditions in the articles of roup. The pursuer Malcolm, purchaser of an adjoining lot, now sued Louttit for fulfilment of his obligation. Louttit admitted the obligation, but pleaded that fulfilment of the same was impossible, as it would be necessary, in consequence of certain alterations which he had made on or in connection with his property, under direction of the Town Council of Wiek, to make an opening in the parapet wall of the Bridge of Wick, which operation the Town Council refused to sanction.
The Lord Ordinary (Jerviswoode) pronounced an interlocutor finding that the Town Council of the burgh of Wick passed a resolution, on the 4th February 1863, approving of a report by a committee of their number, and which report bears that the reporters “ conceive that it would be dangerous to the public, and might tend to injure
Page: 135↓
the arch of the bridge, to leave an opening in the parapet southward of the proposed end of the curve for any stairs to be made, and that any stairs to be made should be confined to the area in Mr Louttit's (the defender's) property;” that the stair to which the conclusions of the present action relate could not be erected by the defender in terms of the obligation contained in the fifth head of the articles of roup consistently with the terms of the report approved by the Council as above found; and that the defender bad no power, and could not be compelled by the pursuer, to proceed in the construction of the said stair against the resolution of the Town Council aforesaid—and therefore dismissed the action. Malcolm reclaimed.
Shand and Orb Paterson for reclaimer.
Gifford and Spens for respondent.
At Advising—
A person of the name of James Miller was proprietor of a piece of feuing ground which is laid down on the plan before us, and which has for two of its boundaries the river of Wick on the south, and Bridge Street and the New Bridge of Wick on the east. Miller proceeded to feu this property and to lay it out in the most convenient way, and having one of the public streets as his boundary on the east, it seems to me to be beyond dispute that he was entitled to access at every point at which his property touched. Now one part of his property being next the river on the south, he thought it would be convenient and proper to give an access between Kirk's land and Bridge Street, and accordingly his feuing plan is prepared on that principle. But to secure that there should be a thoroughfare, he laid an obligation on the parties feuing next the river, and along whose property this thoroughfare must pass, to make this thoroughfare. One part of the obligation was that a stair shall be built as set forth in the articles of roup, and the other part of the obligation was to lay and fence the pavement. Now this obligation was laid on Louttit, and the question comes to be whether the owner of this ground was entitled to lay this obligation on him, or whether the magistrates can interfere to prevent it.
As in a question between the pursuer and defender, the case is too plain for argument, and accordingly the Lord Ordinary intimates that but for the interference of the Town Council, he would have had no doubt. But it appears that the magistrates authorised Louttit to alter the parapet of the bridge so as to disable him from performing his obligation. I think the magistrates themselves could not have so altered the parapet as to interfere with Miller and his feuar having an access by that strip of ground eight feet six inches in breadth to the pavement in Bridge Street, and that is enough for the case. No doubt, if the magistrates had been of opinion that the public safety required that this obligation should not be performed, they might have come and prevented it from being done; and, there being some indication of a feeling of that kind, your Lordships thought proper to intimate to the magistrates so that they might come and let us know their opinion. They have declined to appear, and therefore I am bound to assume that they are of opinion that no public interest is involved, and therefore that there is no necessity for their appearing. I cannot believe that the magistrates of any burgh in Scotland, if they thought the public interests were being compromised, would not instantly appear. That being so, it seems to me that the case is plain, and that the defender, whatever else the magistrates may have done, is in the position of a man refusing to fulfil an obligation in his common title, and therefore judgment must be pronounced against him.
But in January 1863 a vague motion was brought before the Town Council, that it was necessary to give some instructions about this matter, and the Town Council authorised an alteration to be made by a sort of addition, that is, by continuing the parapet and turning it in towards the building, so that Louttit could not fulfil his obligation without breaking through that additional bit of wall. Now the person authorised to do that was Louttit himself—with his own consent if not on his own application. The whole question comes to be, whether Louttit, by getting the Town Council to give him that authority, gets free of the obligations to make that stair as a common access? That is quite extravagant on the part of Louttit and on the part of the Town Council, so far as they support him; and the construction I am inclined to put on their nonappearance is, that they cannot show face to support what was done.
Agents for Pursuer— J. & A. Peddie, W.S.
Agents for Defender— Graham & Johnston, W.S.
