Heritors of Strathblane v Corporation of Glasgow
| Jurisdiction | Scotland |
| Judgment Date | 03 February 1899 |
| Date | 03 February 1899 |
| Docket Number | No. 86. |
| Court | Court of Session |
Ld. Stormonth-Darling, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Church—Manse—Repair of Manse—Assessment—Water-works—Aqueduct—Wayleave—Act 1663, c. 21.—
A conduit of the Glasgow Water-works Commissioners was carried underground through the lands of a parish in virtue of grants of wayleave, exclusive and perpetual, obtained from the proprietors. Held (rev. judgment of Lord Stormonth-Darling) that the Commissioners were liable under the Act 1663, cap. 21, to be assessed in respect of their conduit as heritors of the parish for the maintenance of the manse.
The clerk to the heritors of the parish of Strathblane brought an action against the Corporation of the City of Glasgow (as representing, in virtue of the Glasgow Corporation and Police Act, 1895, the Glasgow Corporation Water-works Commissioners) for declarator that the defenders were proprietors of lands and heritages in the parish, and were heritors of the parish, and liable to be assessed for the maintenance of the church and manse in respect of such lands and heritages, including aqueducts, conduits, pipes, tunnels, and other structures situated in the parish, and for payment of sums, being shares of assessments imposed by the heritors to defray expenses incurred in repairing the manse, due by the defenders in respect of the real rent of the lands and heritages in the parish belonging to and occupied by them.*
The defenders did not dispute their liability as heritors in respect of thirteen acres in the parish acquired by them in fee, but denied liability as heritors in respect of lands through which they had mere servitudes or wayleaves.
The facts, as appearing from the pleadings and a joint minute of admissions, were as follows:—The Glasgow Water-works Commissioners obtained parliamentary powers for the introduction of a water supply from Loch Katrine to Glasgow in 1855. In pursuance of their undertaking, the Commissioners, by agreement, obtained conveyances from Sir Archibald Edmonstone and other proprietors in the parish of Strathblane. By his conveyance, which was similar in terms to those granted by the other proprietors, Sir Archibald conveyed to the Commissioners, in the first place, 100 square yards of land absolutely, and, in the second place, ‘All and whole the heritable and irredeemable servitude right, privilege, and tolerance of a wayleave through that portion of my said lands coloured blue on the said plan, of the width of 8 yards, and distinguished farther by the letter F on the foresaid plan, and extending in whole to 2461 square yards and one-third of a square yard or thereby. … Declaring that the said servitude right, privilege, and tolerance of wayleave through the said portion of land is hereby conveyed to my said disponees for the purpose of their opening up the surface of the land, and forming, constructing, and maintaining therein a culvert or conduit for conveying water to the city of Glasgow and executing all necessary works in connection therewith: Declaring always, as it is hereby provided and declared, that my said disponees shall be bound and obliged, after forming and constructing the said culvert or conduit, to restore satisfactorily the surface of the land, but they shall have liberty of access thereto on all necessary occasions in all time coming hereafter for inspecting, repairing, maintaining, or altering the said culvert or conduit, or any of the works connected therewith or adjacent thereto.’ The Commissioners were infeft upon the conveyances.
In exercise of the rights thus conferred upon them, the Commissioners constructed an aqueduct through the lands of the proprietors in the parish from whom they had obtained conveyances.
Of this aqueduct a portion extending to 6863 yards-in length consisted simply of a bore through the rock, or a bore through the rock lined with masonry or other substance. This portion, of which 4673 yards were lined and 2190 unlined, was entirely underground, and
was formed through part of the lands over which the Commissioners had acquired servitudes or wayleaves.
Another portion of the aqueduct, consisting of cast-iron pipes laid underground, and extending to 886 yards, was also laid through part of the lands over which the Commissioners had acquired a servitude or wayleave.
On 19th March 1898 the Lord Ordinary (Stormonth-Darling) pronounced the following interlocutor:—‘Finds that the defenders are not heritors of the parish of Strathblane, nor liable to be assessed for the maintenance and upkeep of the church and manse of the said parish, except in respect of their being proprietors in fee of certain lands in the said parish, extending to 13 acres 3 roods 7·37 poles or thereby, with the buildings and works thereon; to that extent and effect finds, decerns, and declares in terms of the declaratory conclusions of the summons, and quoad ultra assoilzies the defenders therefrom; continues the cause in order that the proportions of the assessments sued for applicable to the said lands, with the buildings and works thereon, may be ascertained: Grants leave to reclaim.’*
The pursuers reclaimed, and argued;—The question whether the defenders were liable in the assessment claimed depended on the terms of the Act 1663, c. 21. That Act imposed the liability on the ‘heritors’ of the parish, and ‘heritors’ meant owners of corporeal heritages. The test of liability accordingly was ownership of corporeal heritages,1 and the question whether the person sought to be assessed was a parishioner or capable of enjoying the benefits of the parish church was irrelevant. Now, the character of the defenders' right satisfied the test. They were owners of corporeal heritages in the parish. Their right to acquire property was created by statute, although instead of exercising their compulsory powers, they had come to terms with the proprietors. The statute was the offer, and instead of acceptance by notice there had been acceptance by agreement. The right which they had got could not be assimilated to the known servitude of aqueduct, for there was no dominant tenement, and if they had exercised their statutory rights they would have got no more than they did. The tunnel lined with masonry or other substance, which formed part of the aqueduct, was undoubtedly the property
of the commissioners, and heritable. They were bound by their Act to construct and maintain it. It was a corporeal heritage in the strictest sense. So with regard to that portion of the aqueduct which consisted of pipes. They were annexed, and permanently annexed, to the soil. Again, where the aqueduct consisted merely of a bore in the rock, the commissioners were entitled to so much of the ground above and below as was necessary to carry the water. This was a corporeal heritage. Hay'sUNKUNKUNKSC1 case established that a right of wayleave was a heritage which rendered the party in right of it liable to assessment as the owner of lands and heritages. The character of the commissioners' right was also very much the same as that of a railway company, who got the property down to formation level, and a right of support beyond, but both railway companies and canal companies had been held liable to assessment as heritors according to the real rent or annual value of their works.2 The Act of 1663 did not refer to the valued rent roll, and could not, as no such roll was in existence when it was enacted. The cases shewed that the assessment
was not limited to the valued rent, or to subjects of which the rent had been valued.
Argued for the defenders;—The question was who was a ‘heritor,’ and the authorities shewed clearly that it was not everyone who was vested in heritage that was a heritor. Thus a superior was not.1 Nor was a liferenter.2 Nor a titular.3 A tenant under a long lease was excluded because his right was derivative,4 and a mineral owner, because his right was not permanent.5 The principle running through the decisions was that no one was liable to assessment as a heritor unless he were the owner of the dominium utile of lands in the parish,6 the apparent intention being to confine the liability to those who as resident owners could avail themselves of the benefit of the church, and it was as such owners that railway companies were assessable.7 It was not true to say that the title of railway companies was qualified. Their title was unqualified, though there was a limitation on the use to which they might put their property. Although the feudal relation was altered, and a railway company could not be deprived of its land for non-payment of feu-duties or casualties, these remained exigible, and the qualification of the right of railway companies was not due to any limitation in their title, but was inherent in their constitution. The character of their tenure was
radically different from that of the defenders, whose right, though a heritage, was not ownership of the dominium utile, but a servitude. To a great extent their aqueduct consisted of a mere bore or tunnel through the rock, and there was nothing corporeal of which they were the proprietors. Further, a pipe was not a heritage, and ownership of a pipe could not make them heritors. Every servitude implied an exclusive right of occupying the servient tenement for the purpose of the servitude,1 and though a servitude was a heritage, the owner of a servitude had never been held to be a heritor. The case of HayUNKUNK2 was under a different statute, where the words to be construed were ‘owners and occupiers of lands and heritages,’ and the like remark applied to the case of the Barony Parish Road TrusteesUNK.3 Prior to 1854 the heritable right vested in the defenders would not have entered the Valuation-roll, and the basis of valuation adopted in the case of waterworks4 was not applicable to assessments under the Act of 1663.
At advising,—
Lord President.—The question which we...
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