Anderson v Dickie
| Jurisdiction | England & Wales |
| Judgment Date | 22 April 1915 |
| Docket Number | No.7. |
| Date | 22 April 1915 |
| Court | House of Lords |
Earl Loreburn, Lord kinnear, Ld. Dunedin, Ld. Atkinson, Ld. Parker of Waddington, Lord Sumner, Lord Parmoor.
Property Real burdenServitudeDeclaration in disposition that land should not be sold except under conditions as to buildingConstructionEffect of declaration on singular successorGround described as occupied asa lawnIdentification of ground.
The proprietor of lands, after feuing a portion thereof to A, disponed the remainder, with the mansion-house thereon, to B. The disposition to B contained a declaration that it shall not be lawful toBor his foresaids to sell or feu any part of the ground occupied as the lawn between the ground feuedto A and the mansion-house excepting under the express conditions and declarations that there shall be no more than one dwelling-house with suitable offices on any two acres of the ground so sold or feued,and that each of the houses should be of, and should be maintained at, a certain value,which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of A and his foresaids in all time coming.
In an action brought by a singular successor of A against a singular successor of B to restrain the latter from building on his lands any houses except such as fell within the exception in the declaration,
Held (aff. judgment of Second Division) that the terms of the declaration were not habile to constitute a real burden on the lands, but merely imposed a prohibition on B and his heirsnot against building on the landsbut against the selling or feuing of them except under the specified conditions; and defender assoilzied.
Heldfurther that the restriction could not in any event be enforced, in respect that the description of the ground alleged to be affected by the restriction was not sufficiently definite.
(In the Court of Session 26th May 19141914 S. C. 706.)
The pursuer appealed to the House of Lords.
The case was heard on 9th and 11th March 1915. Counsel for the respondent were not called on.1
At delivering judgment on 22nd April 1915,
Earl Loreburn.Being, as I am, of opinion that the interlocutor appealed from ought to be affirmed, I shall not enter upon this case at any
length. Mr Anderson, the appellant, claims that Mr Dickie, the respondent, is precluded from building as he pleases on his own land by reason of a restriction which is said to be a real burden on his land. No question of law arises beyond the construction of a clause in a disposition of those lands from one Smith to one Wakefield in 1864, for it was not disputed that any restriction which is to constitute a real burden must be quite clearly expressed, the presumption being always for freedom, as my noble and learned friend, Lord Dunedin, expresses it.
I have had the advantage of reading in print his opinion in this case, and I concur with him. If this had been an ordinary contract I should have been disposed to give effect, if I could, to what I believe was the intention between the parties, though obscurely worded; but I cannot say that in this case the restriction was clearly expressed. I entirely agree also in the opinion that this restriction is vague in respect of the area to be affected. It would be indeed disastrous if any system of registration, whether of titles or of deeds, allowed lands to be tied up in perpetuity by conditions the ambit of which is so uncertain that it could not be settled without a lawsuit, and, even so, probably could not be settled at all after the lapse of years. I have listened to the evidence and examined the plans in this case, dating from 1864, and feel quite unable to say what was the land occupied as the lawn between the ground feued and the present mansion-house. I have no doubt that this appeal ought to be dismissed with costs.
Lord Kinnear.I agree with the noble and learned Earl. The question is whether the appellant ought not to have obtained a decree of declarator, which the Court of Session has declined to give him, to the effect that the respondent is not entitled to erect any dwelling-houses except of a certain description on a certain part of his lands of Eastwood Park, in the county of Renfrew. The respondent has come under no obligation by virtue of any contract to restrict his exercise of the ordinary rights of property in this particular; and it is conceded that, while the restriction alleged will operate as a negative servitude, it is not such a servitude as can be made to affect the land and its successive owners without entering the infeftment. It follows that, if it is valid and effectual at all, it is necessary, in accordance with the law explained in the opinion of Lord Corehouse, on behalf of himself and the other Judges, in The Tailors of Aberdeen v. Coutts,1 that it should be found in the respondent's title in language which clearly expresses or plainly implies that the subject itself is to be affected, and not merely a particular grantee and his heirs, and this language must be found in the infeftment and of consequence must appear on the record.
The appellant's case is that these conditions are satisfied by the terms of the recorded conveyance in favour of the respondent, which is dated in 1910, inasmuch as the land is conveyed to him under the real liens and burdens, conditions, and servitudes specified, in a disposition in favour of Joseph Colen Wakefield, dated and recorded in the particular Register of Sasines kept in Glasgow for Renfrew on the 16th May 1864.
By our older law, and in particular by the law as it stood when the case of Coutts v. The Tailors of AberdeenENR1 was decided, this reference would have been futile, because it was indispensable that real burdens should be inserted in full in the sasine actually operative for the time being. I think it worth while to note this, not as a historical fact, but because it is a very useful illustration of the principle upon which this case was decided, to wit, that any burden which is to be effectual against singular successors, or against creditors, must be published in the record, because at that time charters and conveyances were not inserted in the Register of Sasines, and the instrument of sasine was; and it was for that reason accordingly that a burden which was to affect the lands, and not only the grantee, must be in the instrument of sasine itself. But by modern statutes the rule has been so far relaxed as to allow of burdens which have once been set forth at full length in a duly recorded sasine, or since 23 and 24 Vict. cap. 143 in a duly recorded conveyance, being imported into subsequent titles by reference, provided that the earlier instrument referred to, and the register in which it is recorded, are sufficiently identified in a certain prescribed manner; and I do not understand it to be disputed that the conditions of these statutes are satisfied by the reference in the respondent's title to the conveyance of 1864.
The words of the conveyance which are said to constitute the alleged burden are copied from a feu-contract between Thomas Smith of Eastwood Park and William Miller, dated in 1852; but although that is the original charter under which the appellant's land was feued out, and is still the governing title in so far as regards any question between superior and vassal, it is of no effect whatever as regards the rights and obligations of the respondent or the burdens on his estate. It expresses a personal obligation undertaken by Smith with reference to a piece of ground of which he retained the property at the time of the feu, and which is now, after several transmissions, the property of the respondent; but it does not enter any title to that piece of ground, and if it were held to be part of the feudal contract, and so to be binding as between successive vassals and successive superiors, it would not touch the respondent, who has not acquired the superiority and between whom and the appellant there is no privity of estate.
The result of all this is that the question comes to depend entirely on the construction and legal effect of the conveyance of 1864, and I find in that conveyance no restriction or condition whatever which should prevent the disponee or his heirs and successors from building on their own land in any manner they think fit. The clause on which the appellant relies is somewhat involved, but, when it is read with due regard to the ordinary sense of words and to their grammatical order, it seems to me to be plain and unambiguous. It declares that it shall not be lawful for the disponee, or his heirs and successors for ever, to sell or feu any part of a piece of ground described, excepting under certain express conditions and declarations, specified in detail and relating to the character, value, and number of dwelling-houses which may be erected,
and their future maintenance, which restriction,the clause goes on, shall be a real burden affecting the said lands and shall operate as a servitude in favour of William Miller and his foresaids in all time coming
William Miller was the feuar under the contract of 1852, but it does not appear who his foresaids are, for neither his heirs nor his singular successors are mentioned in any previous part of the deed. I agree, however, with the learned Judges that this is not a material criticism. The true question is, what is meant by the words which restriction, and the only antecedent to which these words can be referred without violence appears to me to be the whole introductory portion of the sentence which begins with It shall not be lawful to sell and ends with the enumeration of conditions under which, by way of exception, a sale may still be allowed.
It is true that some, though not all, of these conditions involve a limitation of the uses which may be made of property. But still they are outside the exact terms of a reference which specifies a single restriction, and is plainly inapplicable to a variety of building...
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