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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rattray v. Tayport Patent Slip Co. (5 Macph., 944.) [1867] ScotLR 5_219 (1 February 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0219.html
Cite as: [1867] SLR 5_219, [1867] ScotLR 5_219

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SCOTTISH_SLR_Court_of_Session

Page: 219

Court of Session Inner House First Division.

Saturday, February 1. 1867.

5 SLR 219

Rattray

v.

Tayport Patent Slip Co. (5 Macph., 944.)

Subject_1Servitude
Subject_2Rights of servitude holder and proprietor of the ground.

Facts:

Motion by servitude holder to have the proprietor of the ground over which the servitude extended ordained (1) to remove an embankment, retaining wall, and paling erected by him; and (2) to have him interdicted from making any erection on or otherwise occupying the said ground, refused. Observed (1) that the erections complained of were a legitimate exercise of the proprietor's right of property in the ground; and (2) that such a claim was incompetent by a servitude holder against the proprietor.

Headnote:

These were conjoined actions of (1) suspension and interdict and (2) declarator and damages, at the instance of Susannah Rattray, proprietrix of certain subjects in Tayport, against The Tayport Patent Slip Company (Limited), and their contractor. After various procedure, the Court, on 26th June 1867 pronounced an interlocutor, finding and declaring, inter alia, in respect of minutes for the parties, and reports by Mr Wylie, C.E., that the footpath described in the said reports was a public way, and ordaining the defenders to lay it out at sight of Mr Wylie, and thereafter to maintain it; applying the verdict of the jury, and finding and declaring that the pursuer had a servitude of bleaching and drying clothes on so much of the ground marked K K K K K on the plan, No. 100 of process, as was not occupied by the Patent Slip and the Shipbuilding shed in connection therewith, erected and occupied by the defenders; decerning and ordaining the defenders to lay out the said ground in the manner suggested by Mr Wylie; and finding that the pursuer was barred by the terms of the compromise and arrangement entered into between the parties, respecting the road above mentioned, from insisting on the removal of the defenders' slip and shed, or for restoration of the ground of the said servitude beyond what was above found aud declared.

The pursuer now moved the Court, “in order to exhaust the conclusions of the actions, to decern and ordain the defenders to restore, as far as now practicable, to the state in which it was before the defenders' operations, the ground over which the pursuer's right of servitude has been found to extend, viz., so much of the ground marked K K K K K on the plan, No. 100 of process, as is not occupied by the patent slip and the shipbuilding shed, erected and occupied by the defenders, by removing—(1) The embankment made by them thereon; (2) A retaining wall on the west side, and making part of said embankment; and (3) A paling extending across the said ground, all erected by the defenders; and further, to interdict, prohibit, and discharge the said defenders from interfering with or making any erection on or otherwise occupying the said ground, over which the pursuer's right of servitude has been found to extend, in all time coming.”

Judgment:

Clark and Gifford for pursuer.

Dean of Faculty ( Moncreiff), and N. C. Campbell for defenders.

The Lord President held, on the first branch of the motion, that the operations complained of were a quite fair exercise of the defenders' right of property in the ground over which the pursuer's right of servitude extended; and held, on the second branch, that such a claim for interdict was quite inconsistent with the right of a servitude holder, which did not confer on him any title to sue an action of that kind.

Lord Curriehill—I am inclined to put the right of a servitude holder a slight shade lower than your Lordship has done. The rule of our law is, that a servitude holder must exercise his right civiliter; so that when there is more than one way in which effect can be given to it, it must be exercised in the way least burdensome to the servient tenement.

Lord Deas—There is no doubt that a right of servitude does not give the party who holds it a right to prevent all use being made, by the proprietor, of the ground over which the servitude extends. The proprietor may make every use of the ground he pleases, if such use is not inconsistent with the servitude. So much is this the case, that a servitude may be restricted to a particular portion of the ground if that can fairly be held sufficient for the proper exercise of the servitude. That restricttion is very reasonably applicable to the servitude of bleaching.

Page: 220

Lord Ardmillan—I am of the same opinion. It is a clear principle of law that co-existent rights in one subject must not be destructive of each other. There must always be some means of preventing such a result. In such a case as this, there must be in the Supreme Court a power of equitably adjusting the claims of the proprietor of ground on the one hand and the holder of a servitude on the other. The law will not permit the holder of a servitude so to exercise his right as to infringe injuriously on the just rights of the proprietor, nor will the law permit the proprietor of the ground so to exercise his right as to impede the just exercise of the right of the servitude holder. In the present case, I am of opinion that the just exercise of the servitude has been adequately secured; and that the demand made by the holder of the servitude would be inconsistent with the exercise of the right of the proprietor.

Motion refused.

Solicitors: Agent for Pursuer— L. M. Macara, W.S.

Agents for Defenders— J. M. & J. Balfour, W.S.

1867


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