Scottish Court of Session Decisions

In August 1853 a minute of agreement was entered into between the Clerk to the Police and Statute-Labour Committee of the Town Council of Glasgow on behalf of the said Committee, and William Henderson and others, trustees feudally vested in the steadings of ground on which the tenements 18 to 25 Westminster Terrace, Glasgow, were thereafter built.

The agreement, upon the narrative, inter alia, that the second parties proposed to erect certain houses on this ground, and that the first party had paid to the second parties the sum of £370, provided as follows:—“In consideration of this payment the said second parties consent and agree and hereby bind and oblige themselves, as trustees foresaid, and their successors, that their said heritable subjects shall be held as lined back, and the same are hereby lined back for building purposes according to a building boundary-line drawn straight westward from the plane of the front wall of the houses in Fitzroy Place, except in so far as applicable to the tenement at the west end and at the north corner of Kelvin-grove Road, as after mentioned; and further, that their ground to the north of said new building line shall remain unbuilt upon in all time coming, with power, however, to the said second parties to form an area in front of 10 feet wide, and to form the necessary enclosing walls and railing; and the said Police and Statute-Labour Committee, and their successors in office, shall be enitled, at any time they think proper, to throw the said unbuilt-upon ground into and to form and constitute the same part of the public roadway or street, provided the roadway or street and foot-pavements along the whole of Fitzroy Place shall at the same time be widened to the same extent, the said committee being at the expense of all the necessary operations: Declaring, however, as it is hereby provided and declared, that it shall be optional to the second parties to retain and enclose an area not exceeding 10 feet wide from said new building line along the whole line of their property fronting Sauchiehall Street for ornament or utility; and in the event of their so exercising this option, the street or roadway shall only be formed to the north of that area, and the expense of preserving which area and walls, and railing enclosing the same, shall be paid by the said Police and Statute-Labour Committee or their successors: Third, The houses to be erected by the said second parties fronting Sauchiehall Road, as aforesaid, shall not exceed in height three square stories and attics and a half-sunk storey, excepting only the tenement to be erected at the corner of Kelvingrove Road and Sauchiehall Road to extend 90 feet eastward from Kelvingrove Road, which may be erected one storey higher, and with a projecting break not exceeding 2 feet; and the said William Henderson, Robert Towers, and William Towers, as trustees foresaid, on the foresaid terms and conditions, hereby limit and restrict their right of property in the heritable subjects above described accordingly, and have conferred and hereby confer and declare a right of servitude on and in favour of the said Police and Statute-Labour Committee, and their foresaids, as representing the public, to and over that part of the foresaid heritable subjects to the north of the said new building line hereby fixed and agreed on to the extent and effect foresaid; and the said William Henderson, Robert Towers, and William Towers bind and oblige themselves and their foresaids to warrant these presents at all hands, and against all mortals, and all parties consent to the registration hereof in the General or Particular Register of Sasines for publication.” The agreement was recorded in the Register of Sasines on 16th September 1853.

In 1854 a contract of ground-annual was entered into between the trustees and William Henderson, as an individual, under which the steadings of ground in question were disponed to William Henderson, subject to various conditions and, inter alia, the following:—“The said steadings, in so far as fronting the said Sandyford Road, are generally disponed with and under the whole conditions, provisions, and stipulations specified in a minute of agreement between John Burnet, clerk to and on behalf of the Police and Statute-Labour Committee of the Town Council of Glasgow, of the one part, and the first parties hereto, of the second part, dated: Third, The said William Henderson and his foresaids shall be bound to form a sunk area in front of the buildings along the said Sandyford Road, of a width not exceeding 10 feet, and to lay off the ground between the said area and road in an ornamental manner, and conform to the provisions contained in the said minute of agreement between the said John Burnet, on behalf of the said Police and Statute-Labour Committee, and the first parties hereto.”

The contract also provided as follows:—“The whole declarations, conditions, obligations, and others before written shall be and are hereby created and declared real liens and burdens upon and affecting the respective steadings and plot of ground above disponed, and are appointed to be inserted in the instrument of sasine to follow hereon, and in all the future conveyances and investitures of the said steadings and plot, otherwise these presents and all following thereon shall be void and null.”

In the clause of resignation for new infeftment, the contract provided that the subjects were so resigned under “the burdens, conditions, restrictions and reservations, provisions, declarations, obligations, and others above written or referred to.”

The precept of sasine desired sasine to be given, “but always with and under the several and respective real liens and burdens of the said ground-annuals, duplications and interest, and consequents thereto effeiring, and also with and under, in so far as applicable thereto respectively, the burdens, conditions, restrictions, reservations, provisions, declarations, obligations, and others above written or referred to,”

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The instrument of sasine following on this contract, which was recorded in the Register of Sasines on 15th May 1854, contained a narration that the contract of ground-annual was granted with and under the following conditions:—“The said steadings, in so far as fronting the said Sandy-ford Road, are by the said contract of ground-annual generally disponed with and under the whole conditions, provisions, and stipulations specified in a minute of agreement between John Burnet, clerk to and on behalf of the Police and Statute-Labour Committee of the Town Council of Glasgow, of the one part, and the said first-mentioned trustees, of the second part, dated: Third, The said William Henderson and his foresaids should be bound to form a sunk area in front of the buildings along the said Sandyford Road, of a width not exceeding 10 feet, and to lay off the ground between the said area and road in an ornamental manner, and conform to the provisions contained in the said minute of agreement between the said John Burnet, on behalf of the said Police and Statute-Labour Committee, and the said first-mentioned trustees.”

The said contract of ground-annual and instrument of sasine were duly confirmed by the superior.

The houses erected by William Henderson in or about the year 1854 on the subjects facing Sandyford Road were erected on the building line and of the heights specified in the agreement of 1853, but the area formed by him was only 7 feet 11 inches in breadth, and the ground to the north thereof was left unbuilt on and was used as a pleasure ground. The street called Sauchiehall Street or Road and Sandyford Road was one and the same, and was now known as Sauchiehall Street. Fitzroy Place and Westminster Terrace formed contiguous compartments of that street.

The subjects in question after a long series of transmissions passed part to the marriage-contract trustees of Mr and Mrs James Campbell, and part to the testamentary trustees of Dr Thomas Drysdale Buchanan, who in 1902 were respectively the proprietors of Nos. 18 to 23 and of Nos. 24 and 25 Westminster Terrace, as singular successors to the original proprietors.

No specific reference to the minute of agreement appeared in any of the titles, except in the contract of ground-annual and instrument of sasine mentioned above, but in all the other transmissions the lands disponed were declared to be so disponed with and under the whole real liens, burdens, conditions, restrictions, reservations, provisions, declarations, obligations, and others specified and contained in that instrument of sasine.

The Corporation of the City of Glasgow, who were successors of the Police and Statute-Labour Committee, in the course of widening that part of Sauchiehall Street opposite Westminster Terrace and Fitzroy Place, by petition to the Sheriff under the Glasgow Buildings Regulation Act and the Burgh Police (Scotland) Act 1892, obtained compulsory powers to acquire, inter alia, the unbuilt-on ground fronting the property of the trustees. In the book of reference and on the plan lodged with the Sheriff in the course of the proceedings before him, a note was inserted stating that this ground was understood to be burdened with a right of servitude or other real right empowering the Corporation to act as they had done in forming and constituting it part of the public street, and they claimed to take it without making any further payment therefor.

Questions having arisen as to the right so claimed by the Corporation, a special case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) the marriage-contract trustees of Mr and Mrs James Campbell, and the testamentary trustees of Dr Thomas Drysdale Buchanan; and (2) the Corporation of the City of Glasgow.

The contentions of the parties as set out in the case were—“The first parties maintain (1) that as singular successors they are not bound by said minute of agreement; and (2) that they have acquired an indefeasible right to the said ground by infeftment and possession for over forty years. The second parties maintain (1) that the said minute of agreement is an onerous deed, duly recorded, and that in terms thereof they were empowered on the condition therein contained (which has been purified) to form and constitute the first parties' said unbuilt-on ground north of the building-line and area part of the public roadway or street, and that they have validly exercised such power, and are entitled to do so without further payment, valuable consideration having already been given therefor; or alternatively (2) that said minute of agreement constitutes a valid right of servitude or other real right in favour of the second parties, and in restriction of the right of property of the first parties, and is effectual against the first parties to the effect of negativing any claim for further payment by them.”

The question submitted for the judgment of the Court was—“1. Were the second parties entitled to form and constitute said unbuilt-on ground part of the public roadway or street without making further payment to the first parties therefor?”

Argued for the first parties—(1) The right of servitude which the second parties were endeavouring to set up was one of an entirely novel character. The Police and Statute-Labour Committee were not vested in any heritable property which could form a dominant tenement, but were a mere administrative body for certain purposes. But if there was no dominant tenement how could a servitude be constituted as they claimed? The registration of the agreement in the Register of Sasines did not advance their claim since it was a mere personal contract. It was in short an attempt to create a personal servitude. But if it were not a well-known servitude such as could be seen in operation, but merely some indefinite real burden affecting the lands, in order to be made effectual

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against a singular successor it must enter the title— North British Railway Company v. Park Yard Company June 20, 1898, 25 R. (H.L.) 47, 35 S.L.R. 950. To obtain such a right there should have been in the deed a distinct reference to the fact that the burden was to run with the land, which must appear thereafter on the record— Tailors of Aberdeen v. Coutts, December 20, 1834, 13 S. 226. (2) All the second parties could point to was the reference in the instrument of sasine following upon the contract of ground-annual to this minute of agreement. It was quite incompetent to impose burdens on land by a general reference such as this to a deed which did not enter the title, which this agreement did not. To make the burden effectual it was necessary either that it should have been inserted ad longum in the instrument of sasine, or that there should have been a reference to an instrument of sasine containing it ad longum— Allan v. Robertson, 1780, M. 10,265, 1781, 2 Pat. Ap. 572; Lands Transference Act 1847 (10 and 11 Vict. cap. 48), sec. 5. Here the reference did not even state the date of the agreement, so it was clearly of no validity.

Argued for the second parties—(1) The minute of agreement was an onerous deed duly recorded, and its effect was to create a servitude in favour of the community, who were in the position of the dominant tenement. The right thus constituted was not to take the unbuilt-upon ground, but a right of servitude to use it as a road for the public behoof. That was nothing more or less than a servitude of road, which might be either to use an existing road or to make a new road. If the right were not a servitude—though it was expressly declared to be so in the agreement—it was a real burden which affected the lands into whatever hands they came. In order to defeat this right the first parties would have to prove possession of the ground adverse thereto— Smith v. Stewart, June 13, 1884, 11. R. 921, 21 S.L.R. 623. (2) The burden had in fact been placed on record in the only method open by recording the agreement, and by the distinct reference to it contained in the instrument of sasine following upon the contract of ground annual. That reference should have put the singular successor on his guard, and it was his duty to search the register, when he would have found the agreement— Urguhart v. Halden, June 2, 1835, 13 S. 844; Inglis v. Boswall, May 1, 1849, 6 Bell 427. In any view it was the duty of the first parties' authors to have seen that this burden entered the record, and their successors were not entitled to profit by their omission to do so.

At advising—