Scottish Court of Session Decisions

The late Dr John Saunders Muschet, of Birkhill, proprietor of the lands of Chapel Croft, Cambusbarron, Stirlingshire, granted, in 1872, a feu-charter of part of the lands of Chapel Croft to the Cambusbarron Cooperative Society, Limited. The feu was bounded on the east by “the remainder of the lands of Chapel Croft,” and on the west by lands belonging to the Co-operative Society, but acquired from a different superior. The feuars were taken bound to erect on the said feu “a substantial dwelling-house, to be used in the meantime as a bakehouse,” and to put up (so far as not already done) and maintain a proper fence of thorns or beech to the east of the ground feued.

On the death of Dr Muschet his lands passed to the Crown ultimus hæres, and in 1894 the Queen's Remembrancer, as donee in trust for the Crown, granted to James Cullens, flesher, Stirling, a disposition of a small field lying immediately to the east of the ground feued to the Co—operative Society in 1872. This disposition was burdened with “the servitude of any legal right of access competent to the Co-operative Society through the said subjects to their feu lying on the west side thereof.”

The Co—operative Society, who had erected a bakehouse on this property, claimed a right to the use of a cart road which ran along the south side of the field feued to Cullens, as an access to their property from the east. At the end of Cullen's property this road was connected by a gate with the Chapel Croft Road, which led to the Stirling Road. While the Co-operative Society were building the bakehouse the superior allowed them to cart the materials from the Chapel Croft Road by means of this access, and they continued to use it for carting flour and other material to their bakehouse until the field was feued to Cullens in 1894. They laid their gas and water-pipes along it. The present action, at the instance of Cullens, against the Co-operative Society, concluded for declarator that he held his property free from any servitude or right-of-way, and for interdict against the defenders trespassing on his lands.

In the record the defenders claimed the road either as a servitude road, to which right had been acquired by prescriptive possession, or as a road necessary for the reasonable and comfortable enjoyment of their lands, and therefore impliedly granted along with the lands.

A proof was taken, of which the result fully appears in the opinion of the Lord Ordinary, infra.

After the evidence had been led, the defenders' counsel admitted that the acquisition of a servitude road by possession had not been established, and that he therefore rested his case entirely on the implied grant.

On 29th August 1895 the Lord Ordinary (Low) pronounced an interlocutor in terms of the conclusions of the summons.

Note.—“The material facts appear to me to be as follows :—

“In 1827 Dr Patrick Muschet, the father of Dr John Muschet, feued the ground acquired by the defenders in 1872 to William Watson, manufacturer in Cambusbarron. In the feu-charter in favour of Watson the eastern boundary of the ground feued is described as in the defenders’ charter as the ‘remainder of the said lands of Chapel Croft,’ and it is declared that ‘the lands hereby feued are to be separated with a stone wall or other good and sufficient fence from the remaining part of the lands of Chapel Croft, which wall or other fence shall be made or erected on or within the ground hereby feued at the sole expense of the said William Watson, and maintained by him and his foresaids at their own expense in all time coming.’ The fence actually put up seems to have been a thorn hedge.

Watson was proprietor of ground adjoining that feued to him upon the west, and fronting a street called Store Brae. Watson therefore had access to the ground feued through his own property from Store Brae. He erected a dye or wash-house partly upon his original property and partly upon the ground feued, and used the remainder of the latter ground as a garden.

During Watson's time there appears to have been a wicket gate some 3 feet in width in the south end of the fence, between his feu and the field acquired by the pursuer, so that Watson had an access to his feu from the east upon the line of the road now claimed by the defenders. There was no made path leading across the field to the gate, but only a path trodden along the hedge upon the south side of the field, and generally, when the field was ploughed, the space so trodden appears to have been left untouched. When precisely the gate was put in the fence, or what were the circumstances under which it was put in, cannot now be ascertained.

Watson died in 1863, and the ground now belonging to the defenders appears to have been re-acquired in some unexplained way by Dr Muschet. Watson's front property was acquired by a Mr Cowie, and for a few years he also occupied the defenders' ground as a garden as tenant of Dr Muschet. About 1866 Cowie and Dr Muschet appear to have had some disagreement about the garden, and it was then let for several years to the witness Gilchrist, who also had a property fronting Store Brae, through which he obtained access to the garden.

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The wicket gate to which I have referred appears to have fallen into disuse before Watson's death. The witness Mrs Betts is very distinct upon that point, and she says that before Watson's death the hedge had grown right across the gate. After Watson's death there is no evidence of the gate having been used at all, and it appears either to have been blocked up with thorns or with a paling. The pursuer's field also appears at that time to have been ploughed up from fence to fence without any path being left.

Prior to 1872, therefore, it is proved (1) that the ground had always been owned or possessed by persons having property adjoining it, and fronting Store Brae, through which they obtained access to the ground; (2) that there had never been any access for carts to the ground from the east; and (3) that the ground, except in so far as Watson had built upon it, had always been used as garden ground. It is also proved that there was an access (although a very narrow and inconvenient one) to the ground from the north, where a small burn is crossed by stepping-stones.

Now, when the defenders acquired the ground in 1872, they were in the same position as those who had previously held it, in that they were possessed of a property fronting Store Brae, through which they could obtain access to the ground by means of an existing pend entering from the street. In their feu-charter there is no suggestion of any access from the east over the remaining lands of Chapel Croft. On the contrary, as I have already pointed out, they were taken bound to erect and maintain a fence between these lands and the ground feued.

These circumstances appear to me to be very unfavourable for an implied grant of a cart road through the remaining lands of the superior. If a proprietor buys an addition to his property, I think that, apart from stipulation to the contrary, the presumption is that he is to enter it from his property. That view was stated very clearly by the Lord Justice-Clerk Moncreiff in the case of M'Laren v. City of Glasgow Union Raihoay Company, 5 R. 1042. He said—‘To narrow the category, I should say, on this matter of access, that when a purchase is made by a proprietor of the adjacent property, the inference as regards access is in most cases not only displaced but reversed. Every man is presumed to have access to his own ground, and if he purchases an adjoining plot from a neighbour, the presumption is that he means to enter it from his own side. If a man buy the upper storey of a house next his own, or a corner of a field adjoining his park, the presumption is not that he contemplates using the same access as that used by the seller, but that he means to use an access through his own property. In the ordinary case nothing else could be inferred, and it would lead to the most extravagant results were it otherwise.

These remarks were made in a case in which the purchaser was claiming right to use an existing access, and they therefore apply a fortiori to a case such as the present in which there was no existing access.

But then the defenders say that the feu was taken by them for the purpose of erecting a bakehouse; that Dr Muschet was aware that that was the purpose for which they took the feu; that a cart road was necessary for the use of the bakehouse, and that Dr Muschet during his lifetime recognised their right to the road.

Now, there is no doubt that the object which the defenders had in view in acquiring the ground was to erect a bakehouse upon a portion of it, and apart from the oral evidence, the feu-charter shows that Dr Muschet must have been aware of the fact, because the feu-charter declares that the defenders shall be bound to build on the ground ‘a substantial dwelling-house, to be used in the meantime as a bakehouse, stone and slated, and to uphold the same thereon in all time coming;’ and it is further provided that an irritancy is to be incurred ‘in case the said society or their foresaids shall fail in erecting a dwelling-house as aforesaid.’

But while it is clear enough that Dr Muschet knew that the defenders intended to use the building as a bakehouse, I do not think that they can maintain (as at one stage of the argument they appeared to do) that Dr Muschet laid them under an obligation to erect a bakehouse, and was bound therefore to supply them with a suitable access. As I read the clause in the charter, the only obligation laid upon the defenders is to erect a dwelling-house (presumably to secure the feu-duty), and the use to be made of the house ‘in the meantime’ is mentioned rather as a concession to the defenders than as an obligation imposed upon them. It seems to me to be plain that if the defenders had erected a dwelling-house instead of a bakehouse the superior could not have objected.

Now, did the mere knowledge of the superior that the defenders proposed to erect a bakehouse, and his acquiescence in that use of the ground, necessarily imply the grant of a cart road to the bakehouse through the other lands of the superior? I do not think it necessary to consider what would have been the result if such a road had actually been in existence; but as no such road previously existed, it seems to me that it is impossible to read into the conveyance the grant of a road, at all events unless it can be shown that without such a road the ground could not be utilised for the purposes of a bakehouse, and that refusal on the superior's part to give such a road would have amounted to a derogation from his own grant. I do not, however, think that the defenders have established that that was the case.

No doubt it is always a convenience to have a cart access to a bakehouse by means of which sacks of flour and other heavy materials may be brought to the door. But it is not absolutely necessary. Sacks of flour, and such like, may be and are carried considerable distances from the street or road to the bakehouse. It is true that, considering the part of the ground upon which

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the defenders have chosen to build their bakehouse, to convey the materials from Store Brae would involve great labour and expense. But that is because the defenders have built the bakehouse at the south end of the ground. If they had built it opposite the pend entering from Store Brae, I do not think that there would have been much practical difficulty in carrying in the materials. Therefore, in my opinion, the defenders have not proved that a cart access through the other lands of the superior was necessary to the purpose which they had in view in purchasing the ground.

But then the defenders say that although a cart road had not actually been made, it was Dr Muschet's intention to make a road, in accordance with a feuing-plan which he had prepared, along the south side of the field acquired by the pursuer, and that both he and they had the proposed road in view when the feu was taken.

Now, the feuing-plan referred to is in a sketch plan which Dr Muschet had obtained in 1833, showing the manner in which he proposed that his unfeued lands should be given off. Lots Nos. 10, 11, 12, and 13 on the feuing-plan lie between the Chapel Croft Road and the defenders' ground, and the feuing-plan shows a road running from the Chapel Croft Road to the fence upon the eastern side of the defenders' ground. Lot No. 10 was ultimately feued to a Mr Taylor, and Lot No. 11 to James Cullens senior, the pursuer's father, and the field acquired by the pursuer represents lots Nos. 12 and 13. Taylor and Cullens formed a road opposite their feus, but when the defenders acquired the ground feued to them the road had not been formed further to the west, but what was shown upon the feuing-plan as lots Nos. 12 and 13, with a portion of the road opposite to them, was a grass field. Now, the feuing-plan does not, as I understand it, show a road leading to the defenders' ground. The plan is a little rubbed and the line is not very distinct, but it seems to me that the road runs up to the fence forming the eastern boundary of the defenders' ground, and stops there. The plan was made in 1833, and at that time the defenders' ground was feued to Watson, and was off the superior's hands. He therefore did not require to consider it, and the plan referred only to the ground which remained unfeued. Further, lots 12 and 13 had not been feued in 1872, and might never be feued, and Dr Muschet was under no obligation, and presumably did not intend, to make the road unless the ground was feued. Further, even if lots 12 and 13 had been feued, it does not necessarily follow that the road would have been made. Suppose some one had taken both these lots as one feu, a road running straight along the south side of the ground would have been of no use to him. I am therefore of opinion that (at all events apart from the defenders' possession of the road, which I shall deal with presently) the existence of a private feuing-plan showing a road is not equivalent to an actually existing road, which might be held to be included by implication in the grant of the ground. In regard to the allegation that the defenders had the proposed road in view when they took their feu, I can only say that I gather from the evidence that the defenders were shown the feuing-plan for the first time long after the feuing-charter had been granted.

The defenders attempted, with the aid of the feuing-plan, to assimilate their case to that of The Union Heritable Securities Company v. Mathie, 13 R. 670. That, so far as I know, is the only case in which an access not actually in existence at the date of the conveyance was held to be included by implication in the grant. The circumstances, however, were very peculiar, and although the result undoubtedly met the equity of the case, it is difficult, as Lord Rutherfurd Clark remarked, to find a ground of judgment. I therefore do not regard the decision as adding anything to the law upon the subject, but as a special case which was decided entirely upon its peculiar circumstances. Further, it is very easy to distinguish that case from the present.

There remains for consideration the effect of the possession which the defenders have had of the road.

When the defenders commenced to build the bakehouse they put a gate in the fence forming the eastern boundary of their ground, and carted all the materials for the building along the south side of the pursuer's field, upon the line of the road shown on the feuing-plan. After the building was completed, the defenders continued to bring the flour and other stores for the use of the bakery along the road in question, and they to some extent formed the road by putting down stones and ashes. All this was done with the knowledge and consent of Dr Muschet.

The defenders, while they admit that the possession which they have had is not sufficient to constitute a servitude right of way, maintain that the possession interprets the conveyance in their feu-charter, and shows that the road was included in the grant. The pursuer, on the other hand, avers that the defenders' use of the road was a mere privilege conferred upon them by Dr Muschet.

It appears to me that upon the evidence the contention of the pursuer must be sustained. There is only one witness—William Smith—who is able to speak definitely as to the circumstances under which the defenders began to use the road. At the time when the feu was taken he was the chairman of the committee of the defenders' society, and in that capacity he was one of those who negotiated with Dr Muschet for the feu. He says that after the rate of feu-duty had been settled, and it had been agreed that the defenders should take the feu, he asked Dr Muschet for the privilege of bringing in the building materials through the pursuer's field, which Dr Muschet granted. Other witnesses, who were members of the Society at the time, no doubt say that their understanding was that the Society had right to the road, and that Dr

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Muschet recognised the right. The evidence of all these witnesses, however, is very vague, and they mostly give only the impression which they received from the reports of those who formed deputations which on various occasions met Dr Muschet. Smith's evidence, on the other hand, is quite distinct, and as he was one of those who actually carried through the negotiations for the feu, he has the means of knowing precisely what passed, and as I saw no reason for doubting his truthfulness, his evidence must, in my opinion, be accepted as conclusive in regard to the way in which the defenders first obtained the use of the road.

Further, it seems to me that the probabilities of the case point in the same direction. If, as they now say, the defenders regarded the acquisition of the road as an essential matter, I cannot but think that they, or their law-agents, would have taken care to have the right inserted in the feu-charter. On the other hand, if Dr Muschet had been granting a servitude road, I think that he would have had the conditions upon which the grant was given precisely defined. I think that it is most unlikely that he should have assured the defenders, or that, if he did so, that they should have accepted the assurance, that a right to a non-existing road was included in a mere conveyance of the ground which, moreover, contained an obligation upon the defenders, enforcible upon pain of forfeiture, to fence it off from the field through which the road was to pass. It is much more probable that Dr Muschet gave the defenders permission to pass through the field. It was his interest that the building should be completed as quickly as possible, and very probably the fact that he contemplated that a road would ultimately be made through the field made him the more ready to give the concession. The same consideration might have influenced him in allowing the defenders, after the building was completed, to bring the not very large supply of flour, and so forth, which they required at the bakery through the field. It was a privilege which he might naturally enough have granted to his feuars, especially as it does not seem to have interfered with the letting of the field.

Some time after the bakery was established, a deputation of the defenders' society again went to Dr Muschet about the road. It appears that Mr Cullens senior objected to the use which the defenders were making of the road which he had made opposite his house, and of the field of which his firm were then tenants. He accordingly put a padlock upon the gate into the field, and the defenders sent a deputation to Dr Muschet on the subject. The defenders attempted to prove that he then assured them that the road was theirs. I am not sure if the evidence is competent; but assuming that it is so, I am of opinion that it is not proved that Dr Muschet expressed the view that the road belonged to the defenders. The question in regard to which they went to him was whether Cullens was entitled to shut the gate and prevent them having access to the field. All that appears to me to be proved is that Dr Muschet said that Cullens had not the right to do so. It was on this occasion that Dr Muschet produced (apparently for the first time) the feuing-plan. The defenders attempted to prove that the plan was produced to show the road, as being a road to which they had right, but I do not think that that was the case. I think that the plan was produced to show that Cullens having taken his feu upon the footing that the road would ultimately be carried up to the defenders' ground, had no right to object to the defenders using the road with Dr Muschet's permission.

I am therefore of opinion that the use of the road by the defenders has throughout been a matter of privilege and tolerance, and not the exercise of a right.

It was finally argued that the pursuer is barred, personali exceptione, from objecting to the defenders' use of the road. The only ground upon which that plea is rested is, that before he purchased the field the pursuer was tenant of it, and therefore knew the use which the defenders had of the road. Of course, when the pursuer purchased the field, he took the risk of the defenders having a servitude right over it, and if it had turned out that they had such a right, his prior knowledge of their possession would have barred him from repudiating his purchase and making any claim against the seller. But his knowledge that the defenders had used the road did not prevent him stopping that use if he found that it was without legal title.

Upon the whole matter, I am of opinion that the pursuer is entitled to decree.

The defenders reclaimed, and argued—The defenders' case was based on the principle given effect to in the case of Cochran v. Ewart (January 30, 1860, 22 D. 358, aff. March 25, 1861, 4 Macq. 117), and many subsequent decisions, of an implied grant of an access where it was necessary to the reasonable, convenient, and comfortable enjoyment of the property conveyed. The first question, accordingly, was whether the road in dispute—which formed the only cart access to the bakehouse—was necessary for its convenient use. In one case it had been laid down that a coal entrance was a necessary adjunct to a bakery business— Union Heritable Securities Company, Limited v. Mathie, March 3, 1886, 13 R. 670, Lord M'Laren, p. 673—and in any case, the import of the proof was that it was reasonably necessary in the present case. But in every case in which an implied grant had been sustained, there had been other ingredients—an existing access at the date of the grant, continuous use of such access thereafter, &c. As regards the latter ingredient, the present case was particularly strong. For over twenty years the defenders had used the road for all their traffic, and had also laid gas and water pipes along it. On the other hand there had been no cart access before the grant, for the very good reason that before that date no bakery existed and no coal entrance was required. There was, however, a considerable body of evidence

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as to the use of the access as a footpath, and there was a general feuing-plan of the estate made for the superior, showing a road up to the defenders' boundary. But the defenders' contention was that a previously existing access was not an absolute necessity. An implied grant was primarily a question of intention— M'Laren v. City of Glasgow Union Railway Company, July 10, 1878, 5 R. 1042, L.J.C., p. 1047. The importance of a previously existing access was that it led to the implication of an intention to make a grant. Now, in the present case, the implication of such an intention was derived from two independent circumstances—(1) The purpose for which the feu was given off. The charter expressly referred to the erection of a bakehouse; and in various English cases grantees had been held entitled to rights necessarily incident to the purpose for which the grant was made— Gayford v. Moffat, L.R., 4 Ch. App. 133, opinion of L.O. Cairns, p. 136; approved of by Jessel (M.R.) in Corporation of London v. Riggs, L.R., 13 C.D. 748. (2) In any case the superior had been directly applied to by the defenders when his tenant had sought to intercept the use of the road; he had then exhibited to them the feuing-plan above referred to; and, apart from the words he used, as to which there was some dispute, the only reasonable construction which could be put upon his act was an intimation that the defenders held the road as matter of right. The Lord Ordinary had decided against the defenders on the ground that none of the elements above referred to, taken separately, was sufficient to establish the grant; but the defenders were entitled to have the various ingredients taken together in construing their rights to the road— Union Heritable Securities Company v. Mathie, cited supra.

The respondent, besides supporting the reasoning of the Lord Ordinary, argued—The principle of Cochran v. Ewart, cited supra, was that when a person sells a portion of his ground which has an access through a portion which he reserves, there is an implied grant of that access. But in this case it is proved that at the date of the feu there was no access from the east. On the other hand, when a person acquires a feu, to which he has already an access through property belonging to himself, no grant of any other access will be implied. In order that a right of access may be implied in a grant of a feu, it must be necessary, not merely convenient— Gow's Trustees v. Mealls, May 28, 1875, 2 R. 729; Walton Bros. v. Magistrates of Glasgoiw, July 20, 1876, 3R. 1130; Campbell v. Halkett, July 18, 1890, 27 S.L.R. 1000; Louttit's Trustees v. Highland Railway Company, May 18, 1892, 19 R. 791.

At advising—