Anderson v Dickie
| Jurisdiction | Scotland |
| Judgment Date | 26 May 1914 |
| Date | 26 May 1914 |
| Docket Number | No. 74. |
| Court | Court of Session |
Lord Skerrington, Lord Dundas, Lord Salvesen, Lord Guthrie.
PropertyReal burdenServitudeDeclaration in disposition that land should not be sold except under conditions as to buildingConstructionGround described as occupied as a 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 to B or his foresaids to sell or feu any part of the ground occupied as the lawn between the ground feued to 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 to enforce this restriction, brought by a singular successor of A against a singular successor of B who proposed to build on his lands,
Held that the terms of the declaration above quoted were not habile to constitute a real burden or servitude on the lands, but merely imposed a prohibition on B and his heirsnot against building on the landsbut against the sale or feuing of them except under the specified conditions; and defender assoilzied.
Held further (per Lord Guthrie) 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.
On 22nd November 1912 Robert Anderson, merchant, Glasgow, brought an action against Matthew Dickie, builder, Glasgow, concluding for declarator that the defender is not entitled to erect any dwelling-houses other than one dwelling-house with suitable offices on any two acres of ground, and of the value of at least 900, on any part of the ground now or formerly occupied as the lawn between the ground feued by Thomas Smith to the pursuer's author, William Miller, by feu-contract dated 14th, 22nd, 27th, and 30th September 1852, and the mansion-house of Eastwood Park, in the parish of Eastwood and sheriffdom of Renfrew, all as said ground is marked numbers 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, and 70 on the sketch or plan endorsed on the said feu-contract, and coloured blue on the plan produced herewith. The summons also concluded for interdict against the defender erecting any dwelling-houses other than those above mentioned on any part of the said ground.
The pursuer was proprietor of the house and grounds of Eastwoodhill, Giffnock, being a portion extending to 41/2 acres of the lands of Eastwood Park. This portion of ground was feued by Thomas Smith of Eastwood Park and others to William Miller, merchant, Glasgow, under a feu-contract in the year 1852; and the pursuer had right thereto under a duly recorded disposition by William Miller to the pursuer and James Anderson, merchant, Glasgow, in 1879 and 1880, and a further duly recorded disposition by the pursuer and James Anderson to the pursuer in 1881. The feu-contract between Smith and Miller contained the following declaration:Declaring also, as it is hereby expressly provided and declared, that it shall not be lawful to the said Thomas Smith or his foresaids or the other disponers to sell or feu any part of the said ground now occupied as the lawn between the ground hereby feued and the said present mansion-house of Eastwood Park, and as marked numbers 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, and 70 on the said sketch or plan endorsed hereon, 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 said dwelling-houses attached thereto shall be of the value of at least Nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall also be a real burden affecting the said lands, and shall operate as a servitude in favour of the said William Miller and his foresaids in all time coming.
In 1864 Thomas Smith, by a disposition, which was duly recorded, disponed the remaining part of the lands of Eastwood Park to Joseph C. Wakefield, merchant, Glasgow. This part of the lands extended to 62 acres, and the mansion-house of Eastwood Park was situated upon it. The defender became proprietor of this part of the lands in virtue of a duly recorded disposition in 1877 by Wakefield to David Tod and a duly recorded disposition by Tod's testamentary trustees to the defender in 1910.
The disposition by Smith to Wakefield (the defender's author) contained the following declaration:And with and under the declaration that it shall not be lawful to the said Joseph Colen Wakefield or his foresaids to sell or feu any part of the ground occupied as the lawn between the ground feued by me to William Miller, merchant in Glasgow, and the present mansion-house of Eastwood Park, 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 said dwelling-houses attached thereto shall be of the value of at least Nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of the said William Miller and his foresaids in all time coming. The disposition to Tod and the disposition to the defender by Tod's trustees were granted under burden of, inter alia, the real burdens, servitudes, and declarations so far as still subsisting and not implemented, departed from, or discharged, specified in the disposition by Smith to Wakefield.
The pursuer averred that the declaration, restrictions, burdens, and servitudes set forth in the disposition by Smith to Wakefield appeared on the record, were made real burdens and servitudes on the subjects held by the defender in favour of the pursuer's lands, and were incorporated in and affected the defender's title. He also averred that the defender intended to erect upon the ground now or formerly occupied as the lawn tenements of dwelling-houses or other dwelling-houses contrary to these declarations and restrictions, and that these buildings would injure the amenity of the pursuer's property and cause him loss and damage. The pursuer further averred (in condescendence 5):The ground which at the date of the said feu-contract in favour of William Miller, and of the said disposition in favour of Joseph Colen Wakefield, was occupied as the lawn, comprises the whole ground between the Eastwood Park mansion-house and the feu given off to the said William Miller, and is shown coloured blue on the plan produced. Admitted that the defender's authors erected the usual offices attached to a dwelling-house on the area restricted as aforesaid. Quoad ultra the statements and explanations in answer, so far as not coinciding with pursuer's averments, are denied under reference to the titles of the parties.
The defender averred that there was no privity of contract or estate between him and the pursuer, and admitted that he proposed to erect certain buildings upon his lands. In answer to condescendence 5 for the pursuer he averred:Denied that the declarations and others mentioned are effectually made real burdens and servitudes on the subjects held by the defender in favour of the pursuer's lands. Denied further that the ground described as occupied as the lawn comprises the whole ground between the Eastwood Park mansion-house and the feu given off to the said William Miller, which is shown coloured blue on the plan produced by the pursuer. Explained that the clause partially quoted from the disposition to Mr Wakefield, the defender's author, of 1864, has reference only to ground occupied as lawn at that date. Not known and not admitted that the ground then so occupied was the same as that referred to in the feu-contract between the said Thomas Smith and William Miller in 1852 and the relative instrument of sasine in favour of William Miller. In the disposition to the defender's said author there is no reference to the numbered sections mentioned in the declaration quoted above appearing in the feu-contract between Smith and Miller, nor is there any reference to the plan therein mentioned. The numbered sections in question embrace not only ground between the mansion-house of Eastwood Park and the land feued to Mr Miller, but also ground to the north of Eastwoodhill and other large portions o Eastwood Park which do not in any reasonable sense answer to the description of being between the ground feued to Mr Miller and the mansion-house. In the plan annexed to the disposition in favour of Mr Wakefield there is no indication of what land was, as at the date of the disposition, occupied as the lawn; and Mr Wakefield erected, without objection on the part of the pursuer's predecessor in title...
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