Campbell's Trustees v Corporation of Glasgow
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1902 |
| Date | 20 March 1902 |
| Docket Number | No. 141. |
| Court | Court of Session |
Lord Kinnear, Lord President, Lord M'Laren.
PropertyMinute of AgreementObligation to allow land to be taken for roadPersonal or RealSingular SuccessorsServitudeImporting conditions into title by referenceRegister of Sasines.
By minute of agreement entered into in 1853 between a town-council and the proprietors of a piece of land abutting on a public road, the proprietors, in consideration of a money payment, agreed to keep back the line of a row of houses which they proposed to erect on the land to a certain distance from the road, reserving power to use a portion of the ground between the houses and the road. The town-council, on the other hand, were to be entitled, 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. The agreement also contained this clause,The proprietors hereby confer and declare a right of servitude on and in favour of the town-council, as representing the public, to and over that part of the heritable subjects agreed on to the extent and effect foresaid. The agreement was recorded in the Register of Sasines.
In 1854 the proprietors of the lands, in a contract of ground-annual, disponed them, with and under the whole conditions, provisions, and stipulations specified in a minute of agreement between the town-council and the proprietors, dated, the date not being given. An instrument of sasine followed, and was recorded in 1854, giving sasine in the subjects with and under the burdens, conditions, &c., above written or referred to. The conditions referred to were not set forth.
In 1901 the town-council, in a question with purchasers of the land abutting on the road, having claimed a right under the minute of agreement to take the unbuilt-upon ground and use it as part of the public road without making any payment therefor, a special case was presented by these parties.
Held that the stipulations in the minute of agreement were not effectual against singular successors, in respect (1) that the agreement was merely a personal contract, which derived no efficacy from being recorded in the Register of Sasines; (2) that it did not create a servitude of way, as it had not been followed by possession; (3) that the right to take land was not one of the known servitudes; and (4) that the sasine of 1854 had not the effect of making the stipulations in the agreement real burdens, as it did not set them forth at length.
Question whether the agreement might be effectual to create a servitude non dificandi.
The question raised in this special case had reference to the right of the Corporation of Glasgow to use certain ground as part of a public road or street without paying therefor.
A minute of agreement, dated 17th and 18th August 1853, was entered into between John Burnet, clerk to and acting on behalf of the Police and Statute Labour Committee of the Town-council of Glasgow, on the first part, and William Henderson and others, trustees feudally vested in certain ground on which the tenements Nos. 18 to 25 Westminster Terrace were built, on the second part.
The agreement proceeded on the narrative, inter alia, that the second parties were proposing to erect houses on the north side of their property along Sauchiehall Street with the front walls thereof, although well within the northern boundary of the second parties' property, projecting beyond the building line of Fitzroy Place, which immediately adjoined the subjects on the east, and that the first parties thought it desirable, as tending to improve the locality and the roadway or street under their charge, to request the second parties to set back the houses to the line of Fitzroy Place, and to build them of a certain height.
It was accordingly agreed that the first parties should pay the second parties 370, which they did, and in consideration of this payment the second parties bound themselves and their successors that their property should be lined back for building purposes to the line of Fitzroy Place; 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 entitled, 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.
The second parties also agreed to restrict the height of the houses to be erected by them, and 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.
Then followed a clause of absolute warrandice by the second parties,And all parties consent to the registration hereof in the General or Particular Register of Sasines for publication.
The minute of agreement was recorded in the Register of Sasines for Renfrewshire and regality of Glasgow on 16th September 1853.
Thereafter, by a contract of ground-annual dated 15th May, and registered in the books of Council and Session 14th June 1854, the trustees conveyed these subjects to the said William Henderson, the latter binding himself to erect no buildings fronting Sandyford Road* north of the line of Fitzroy Place. The contract bore that 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...
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