Scottish Court of Session Decisions

This was an action against Franc Nichols Steuart, proprietor of the estate of Inchewan, at the instance of Sir Archibald Douglas Stewart, heir of entail in possession of the Grandtully and Murthly estates, for declarator that, as heir of entail foresaid, he had sole and exclusive right to the water assessment paid by the owners of feus in the lands of Inchewan, and that the defender had no right thereto.

The circumstances of the case were narrated by the Lord Ordinary in his note, as follows:—“The late Sir William Steuart was heir of entail in possession of the estate of Grandtully, and in that capacity he obtained power to feu the lands of Inchewan. In the exercise of that power he granted several feus, according to the form prescribed by the Court. In the earliest charters it was contemplated that a supply of water might be introduced by Sir William or the heir in possession, and the vassal was taken bound ‘to take his supply of water for the use of his dwelling-house on the same terms and conditions as the other feuars.’ Thereafter Sir William brought in a supply of water for the general use of the feuars, and in the subsequent charters the vassals were taken bound ‘to take and pay for the same at the same rate as the other feuars, any assessment for said water not to exceed the rate of one shilling per pound on the yearly rental.’ But it was declared that ‘the vassals should have no claim against me or the heirs of entail for any deficiency in the supply of water.’

“The water was brought from the lands of Grandtully other than those of Inchewan. It was collected in a reservoir on the entailed estate, and carried by pipes to the feus. It is certain that a part of the cost of introducing the water was charged on the entailed estate. But it does not appear whether the whole cost was so charged or not.

In 1864 the lands of Inchewan were excambed for the lands of Stenton. After the date of the excambion several feus were given off. The form of the charter was considerably changed. Before the excambion the granter was described as heir of entail in possession of the entailed estate of Grandtully and others. After it he is described ‘as heritable proprietor of the piece of ground hereinafter disponed,’ but the charters contain an obligation on the vassals to take and pay for the water.

By a general disposition mortis causa Sir William Steuart conveyed his whole estates to the defender, including the lands of Inchewan. The pursuer succeeded Sir William as heir of entail in the entailed lands.

The vassals on the lands of Inchewan are willing to pay their water-rate either to the pursuer or defender. But a question has arisen to which of them it is payable. Hence this action.”

The defender pleaded—“(2) The defender being superior of the several subjects contained in the feu-charters founded on by the pursuer, and as the whole obligations contained in these charters must run between the superior and the vassals or proprietors of the dominium utile of the subjects, and as the water-rates in question are payable under obligations in these charters, it follows that the defender, as the superior, is entitled to payment of those water-rates. (6) The defender is entitled to the water-rates in question, either as superior foresaid or as general disponee and sole executor of the deceased Sir W. D. Steuart.”

The Lord Ordinary gave decree against the defender in terms of the conclusions of the summons.

“ Note.—[ After the narrative given above]—The question presents itself in a different form as regards the feus granted after the excambion and those granted before it. For, while the pursuer contends that it was beyond the power of Sir William Steuart to communicate to the former class

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of feuars the benefit of a water supply derived from the entailed estate, he does not maintain that it was not within his power to confer that privilege on the latter class. With respect to the former, his case is that he is entitled to stop the supply, but that as he is willing to continue it he is entitled to the rate. As regards the latter, he says that as the supply is taken from the entailed estate, the right to exact the rate was, according to the true and equitable construction of the feu-charter, reserved to the heirs of entail, and not to the superior of the ground which was feued.

“In regard to the feus granted after the excambion, the Lord Ordinary is of opinion that the pursuer is right. He thinks that Sir William had no right to give to the feuars a water supply from the entailed estate. The water had been legitimately introduced for the benefit of the previous feus, and the vassals obtained a valid right to it. But when the lands of Inchewan were separated from the entailed estate, Sir William could not, as proprietor, obtain a benefit to himself and his heirs-general which was derived from the entailed estate. If the feus had been granted by the defender as his successor, the pursuer would, it is thought, have been entitled to refuse any further supply of water than was necessary for the feus granted before the excambion. Sir William cannot, in this question, be in a better position than his successor, and therefore, in the opinion of the Lord Ordinary, he had no power to communicate the water supply to the feuars.

The result, in strictness, would be that the pursuer should take measures to cut off the water supply from the feuars. But, as he is willing to give it, and they are willing to take it, the pursuer seems entitled to the declarator which he asks as in a question with the defender.

The question in regard to the feus granted before the excambion is more difficult, inasmuch as it is not maintained that the water supply was legally given to them. The defender contends that the obligation to pay the rate is contained in a feu-charter under which he is superior, and with which the pursuer has no connection. The argument is forcible, but the Lord Ordinary has come to be of opinion that it is not well founded.

At the time when the charters were granted Sir William held the lands as heir of entail, and it follows that whatever benefits were stipulated in favour of the superior were stipulated in favour of the heirs of entail. There is a feu-duty stipulated for the lands themselves, and a water-rate for the supply of water derived from another part of the entailed estate. When the separation takes place it is, in the opinion of the Lord Ordinary, the fair construction of the charter that what is paid for the lands shall be payable to the superior, but what is paid for the water supply shall be payable to the owner of the estate from which it is derived. If there had been a slump payment for all the benefits granted to the feuar, it might have been difficult to make a separation. But as the separation has been made in the feu-charter itself, there seems no reason why the different owners should not be entitled to enjoy the benefit derived from their separate estates.

The pursuer produced documents to show that in settling the excambion the feu-duties were taken as the value of the lands. The Lord Ordinary doubts whether this case can be taken into account when the excambion is itself unchallenged. But, taken along with the fact that the cost of procuring the supply of water was in part, and probably in whole, charged on the entailed estate, it goes far to satisfy him that his judgment is in accordance with substantial justice.”

The defender reclaimed, and argued—The value of the lands of Inchewan is estimated as that of lands suitable for feuing purposes in the contract of excambion. A water supply is an essential for feuing purposes. It must therefore be taken that in acquiring the lands of Inchewan in fee-simple by means of that excambion Sir William acquired them with the water supply, and that right he transmitted to the present defender, The right here is analogous to the rights that have been held to go with lands that are feued out, as being inter naturalia. Then, too, by the doctrine of implied grants, viz., that where' part of an estate is conveyed, all that is necessary for the convenient enjoyment of that part is held to be conveyed with it, and is constituted a servitude over the rest of the estate if necessary, is applicable here. If Sir William feued land for these houses, it must be held that he thereby constituted a servitude over his own entailed estates for a water supply.

The pursuer argued—The capitalised value of the feu-duties is the value that is taken as the value of these feus in the contract of excambion; the water-rates are not mentioned. As to the doctrine of implied grants, founded on the case of Ewart v. Cochrane, March 22, 1861, 4 Macq. 117, that does not apply here, for it is plain that the severance of an estate which the Lord Chancellor had in view was not such an one as has occurred here, viz., of an entailed estate from a fee-simple estate. What is spoken of there is what is necessary for the beneficial enjoyment of an estate. That is not the question here. There is no question with the feuars about cutting off their water supply; the sole question is as to the right to the water-rates, a right which is not essential to the beneficial enjoyment of the estate of Inchewan.

At advising—