Crawford v Field
| Jurisdiction | Scotland |
| Judgment Date | 15 October 1874 |
| Date | 15 October 1874 |
| Docket Number | No. 11. |
| Court | Court of Session |
Lord Gifford M., Lord President, Lord Deas, Lord Ardmillan, Lord Mure.
Superior and Vassal.—
A proprietor granted a feu of a piece of ground described as bounded on three sides by A Street, B Street, and C Street, with free ish and entry by all roads or streets made and to be made for the use of the feuars. A plan drawn upon the back of the feu-contract, and signed as relative thereto, shewed the streets, but this plan was not referred to in the deed. At its date only one of the three streets had been formed. The vassal was taken bound to pay a proportionate part of the cost of making the streets. In a question between the feuar and the superior held that the vassal was entitled to ish and entry by the ground upon which the proposed streets were to be formed, and that the erection of wooden buildings on the site of one of the proposed streets by the superior was an invasion of the vassal's right.
This was an action at the instance of Robert Crawford, distiller in Leith, against Thomas Field of Bowling Green, containing a conclusion that ‘the defender is not entitled to occupy, with buildings or other erections or enclosures, the solum of Burlington Street, opposite the warehouse belonging to the pursuer situated on the east side of Bangor Road, Leith.’
In 1864, by feu-contract, the defender sold, alienated, and in feu-farm disponed, to and in favour of Thomas Bernard, ‘All and Whole that area of ground containing 27 poles imperial measure, being part of the defender's property of Bowling Green, Leith, bounded as follows:—On the north by the area of ground feued to Andrew Morton, ironfounder, on the west by Bangor Road, on the east by Albert Road, and on the south by Burlington Street, and including the wall built upon the said area of ground, and forming the south boundary thereof, with free ish and entry to the said area of ground by all the roads or streets made, or to be made, by the defender for the use and accommodation of his feuars at Bowling Green.’ The contract farther stipulated that the feuar should be bound to pay a proportion of the expense of maintaining the streets and roadways leading to said area of ground, and the said property of Bowling Green, until the same should be taken over as public streets and roads, and assessed for as such. A plan was drawn upon the back of the feu-contract, in which the area and the streets were delineated, and was signed by the defender as relative to the feu-contract. Mr Bernard erected upon the ground so feued to him by the defender a large warehouse. The warehouse was entered by a door opening into Bangor Road, and was lighted by windows looking into Burlington Street, which had been only partially formed.
In 1867 an agreement was entered into between Bernard, a Mr Philip, and the defender that Albert Road should not be formed. Philip then obtained from the defender a feu of part of Albert Road, and agreed to give part of it to Bernard in consideration of his consenting to renounce his servitude right over Albert Road.
The defender then granted a feu-right to Philip, including in it the whole solum of Albert Road, and Philip then conveyed the half of it to Bernard by disposition dated 19th December 1867.
In 1873 Bernard conveyed the subjects belonging to him to Crawford, the pursuer, with the whole rights and privileges thereto belonging.
The defender had erected certain buildings of wood on the site of the intended street, named Burlington Street, and so shut up the access from the pursuer's feu and obstructed the lights of the warehouse erected on it.
The pursuer pleaded;—The buildings and erections complained of are an invasion of the pursuer's rights under the said charter, and are illegal and unwarrantable.
The defender pleaded;—The intended street called Burlington Street not having been formed, and there being no obligation upon the defender to form said street, at all events in hoc statu, the pursuer cannot interfere with the defender in the use of his lands by temporary erections of the kind complained of.
The Lord Ordinary pronounced the following interlocutor:—‘Finds that, according to the true import and effect of the writs and titles granted by him, the defender is not entitled to occupy or enclose the solum of Burlington Street, opposite to the warehouse belonging to the pursuer, so as to prevent the pursuer from having the use of the solum of Burlington Street opposite said warehouse: Therefore finds, declares, decerns, and ordains in terms of the conclusions of the action: Finds the...
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