Compugraphics International Ltd V. Colin Nikolik
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Bonomy,Lord Hardie |
| Judgment Date | 20 May 2011 |
| Neutral Citation | [2011] CSIH 34 |
| Court | Court of Session |
| Published date | 20 May 2011 |
| Docket Number | A653/07 |
| Date | 20 May 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Hardie Lord Bonomy | [2011] CSIH 34 A653/07 OPINION OF THE COURT delivered by LADY PATON in the cause COMPUGRAPHICS INTERNATIONAL LIMITED Pursuers and Respondents; against COLIN NIKOLIC Defender and Reclaimer: ______ |
Pursuers and respondents: Sandison QC; HBJ Gately Wareing LLP
Defender and reclaimer: S. Wolffe QC; Drummond Miller LLP (for McIlroy Hipwell & Dingwall, Solicitors, Dunfermline)
20 May 2011
Introduction
[1] In 2007, the defender purchased land in Eastfield Industrial Estate, Glenrothes. He then asked his neighbours (the pursuers) to remove some air-conditioning pipes and ductwork attached to the southern wall of their factory, overhanging his land and supported by metal stanchions embedded in concrete on his land. The air-conditioning and stanchions had been in position since 1971, and had been clearly visible to any potential purchaser such as the defender.
[2] After some unproductive discussions, the pursuers raised the present action, seeking declarator (i) that they are owners of the pipes, ductwork, and associated support structures, and are entitled to retain them in place "free of interference from the heritable proprietor of the ... solum"; alternatively (ii) that they have servitude rights to retain the pipes, ductwork and associated support structures in place. The defender seeks to have the action dismissed as irrelevant.
[3] After a debate the Lord Ordinary repelled the defender's first plea-in-law challenging the relevancy and specification of the pursuers' averments; refused to dismiss the action; and put the case out By Order to discuss whether a proof on the question of possession was necessary. Before that By Order could take place, the defender reclaimed. The pursuers cross-appealed, contending that the Lord Ordinary should have granted decree de plano.
[4] During the reclaiming motion we were referred to copy title deeds, plans, correspondence and photographs of the pipes and stanchions. The defender holds a disposition in his favour (not lodged as a production). However the defender does not yet have a Land Certificate in his name, as the Keeper of the Land Register has been advised of the present litigation and awaits the outcome. Each party urged the court to resolve the dispute without resorting to a proof.
The conveyancing history[5] The pursuers' pleadings, read with some of the productions, disclose that in the early 1970s Eastfield Industrial Estate was owned by Glenrothes Development Corporation (GDC). One unit (Unit F) owned by GDC comprised a factory building constructed on a rectangular area lying with its long axis running west-east. Unit F was bounded on the north by Newark Road North; on the east by Unit G owned by GDC; on the south by a pathway and to the south of the pathway, Units H and J owned by GDC; and on the west by a car-park owned by GDC.
[6] In 1971 the pursuers became tenants of Unit F. In the lease granted by GDC in favour of the pursuers, the subjects let (described in the deed and depicted in a plan) included not only the rectangle coloured pink, but also the pathway to the south coloured yellow, together with the buildings and other erections thereon. The pursuers took entry to the existing factory building, and installed a special air-conditioning system to filter out dust from their manufacturing process. That air-conditioning system included pipes and ductwork fixed to the external south wall of the factory and supported by metal stanchions embedded in concrete pits in the pathway. As GDC owned both the rectangular area and the pathway lying to the south, no difficulty arose in relation to the positioning of the pipes, ductwork and stanchions.
[7] The lease contained inter alia the following reservation:
"(FIVE) ... And there shall be reserved to the Landlords and the proprietors or tenants of Factory Units "G", "H", "J" and "K" and others at Eastfield Industrial Estate aforesaid, rights of access over the fire escape route coloured yellow on the said plan as an emergency escape route only declaring that the Tenants shall be bound to keep the said fire escape route free of any obstacle or hindrance of any kind the existing metal supports of the air-conditioning system being excepted."
Thus the pursuers as tenants were obliged to keep the pathway leased to them clear of any obstacles except the existing metal stanchions supporting the air-conditioning pipework.
[8] In 1983, the pursuers purchased the factory from their landlords, GDC. However their title deed ("the 1983 Feu Disposition"), while conveying to the pursuers the rectangular area coloured pink, did not convey to them the pathway coloured yellow. The disposition conveyed to the pursuers:
"ALL and WHOLE that area of ground extending to 313 decimal or one-thousandth parts of a hectare or thereby lying to the south of Newark Road North forming part of the Eastfield Industrial Estate situated in the designated area of the new town of Glenrothes, ... all as the said area of ground is delineated and shown coloured pink on the plan annexed and signed as relative hereto ... Together with the factory premises and others erected on the feu ... But the Feu is so disponed always with and under ... the reservations, burdens, conditions and others hereinafter written each of which shall be operative and remain in force independently of the others videlicet:- ... (EIGHTH) ... there shall be reserved to the Superiors and the proprietors or tenants of Factory Units G, H, J and K and others at Eastfield Industrial Estate aforesaid rights of access over the fire escape route coloured yellow on the said plan as an emergency escape route only declaring that the Feuar shall be bound to keep the said fire escape route free of any obstacle or hindrance of any kind the existing metal supports of the air conditioning system being excepted ..."
GDC remained the owners of the pathway and Units H and J which lay to the south of the pathway. Although the pursuers did not own the pathway, no disputes arose at that stage in relation to the metal stanchions concreted into the pathway and supporting the air-conditioning on the external south wall of the pursuers' factory.
[9] In 2000 GDC conveyed Units H and J to Galgon Industries Ltd ("Galgon"). The conveyance included the pathway. In 2007 Galgon sold Unit H and the relevant section of the pathway to the defender. Following his purchase, the defender contacted the managing director of the pursuers, pointing out that his heritable title included the pathway coloured yellow in the pursuers' Feu Disposition of 1983, and that the pursuers' air-conditioning and supporting stanchions were therefore encroachments on his land. Initially the defender indicated a willingness to dispone the pathway to the pursuers in exchange for another plot of land. However agreement could not be reached. The defender then sent the pursuers an e-mail dated 14 June 2007 stating inter alia:
"... I don't need further Legal Advice regarding Ownership nor the fact that the structure is on my land and it is interfering with my development plans for the yard!!
In view of this I would ask formally that you remove this structure in its entirety before 9 am on Monday 18th June which is when I commence Groundworks.
... Should the structures not be removed by Monday the 18th, then I shall arrange for my staff to remove the same, dump it in your carpark and issue you with an invoice for labour, Plant etc ..."
[10] The pursuers responded by raising the present action seeking interdict and interim interdict against the removal of the air-conditioning and its supports. Interim interdict in terms of the Third Conclusion was duly granted. The pursuers also seek declarator in the following terms:
"First For decree finding and declaring that the pursuers are the heritable proprietors of the pipes, ductwork and associated support structures situated on and over the path and verge lying to the south of the south wall of Unit F, Newark Road North, Eastfield Industrial Estate, Glenrothes, and as such heritable proprietors have a heritable and irredeemable right to retain the said pipes, ductwork and support structures resting on and situated above the solum of the said path and verge, free of interference from the heritable proprietor of the said solum.
Two Alternatively to the decree first concluded for, for decree finding and declaring that the Pursuers as heritable proprietors of the subjects known as and forming Unit F, Newark Road North, Eastfield Industrial Estate, Glenrothes have heritable and irredeemable servitude rights to retain the pipes, ductwork and associated support structures situated above and resting on the path and verge lying between the south wall of the said Unit F Newark Road, North, Eastfield Industrial Estate, Glenrothes and the fence erected on ground now belonging to the Defender and forming part of Units H & J Newark Road South".
[11] Those conclusions are supported by the following averments:
Condescendence 4: In terms of the 1983 Disposition, Glenrothes Development Corporation ("GDC") conveyed to the pursuers an area of ground extending to 0.313 hectares as shown on the plan attached to the disposition, together with "the factory premises and all others erected on the Feu". As at the respective dates of the delivery to the pursuers and recording of the 1983 Disposition, the factory premises included (as they had at all times since at least May 1971) the pipes, ductwork and supports condescended upon. As at the same dates, the path and verge below the said pipes and ductwork, and upon which the said supports rested, also belonged to GDC. The 1983 Disposition reserved to GDC and the proprietors or tenants of Units G, H, J and K at the Industrial Estate rights of access over the path and verge condescended upon (which was referred to as a "fire escape route") and obliged the pursuers to keep...
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