Hunter v Fox
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Viscount Radcliffe,Lord Guest,Lord Pearce,Lord Upjohn |
| Judgment Date | 08 April 1964 |
| Judgment citation (vLex) | [1964] UKHL J0408-3 |
| Court | House of Lords |
| Docket Number | No. 7. |
| Date | 08 April 1964 |
[1964] UKHL J0408-3
House of Lords
Lord Reid
Viscount Radcliffe
Lord Guest
Lord Pearce
Lord Upjohn
Upon Report from the Appellate Committee, to whom was referred the Cause Hunter against Fox and others, that the Committee had heard Counsel on Wednesday the 12th day of February last, upon the Petition and Appeal of Mrs. Mary Rait Black or Hunter, wife of and residing with Alexander Hunter, Company Director, at Warrenlee, 8 Anthony Road, Largs, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division of the 10th of May 1963, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of James Harold Gardner Fox and the Phoenix Assurance Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 10th day of May 1963, complained of in the said Appeal, be, and the same is hereby, Recalled, and that the Interlocutor of the Lord Ordinary of the 30th day of January 1963, be, and the same is hereby. Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to proceed as accords: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Expenses of the Action in the Court of Session since the date of the Interlocutor of the Lord Ordinary and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The parties in this case own adjoining houses at Largs. The Respondent owns a strip of ground facing the sea. His house, Warren Park Lodge, lies towards the north end of his strip. The Appellant owns ground to the east of the Respondent's ground and her house, Warren Lee, has a view of the sea over the unbuilt southern part of the Respondent's ground. The Appellant's case is that she has a servitude of prospect which entitles her to prevent the Respondent from building or planting trees so as to interrupt her view. In this action she seeks a declarator and interdict. The Respondent pleads inter alia that her averments are irrelevant. The Lord Ordinary excluded certain averments from probation but quoad ultra allowed a proof. The First Division by interlocutor of 10th May, 1963, sustained the Respondent's plea to relevancy and dismissed the action. The Appellant now seeks to have the interlocutor of the Lord Ordinary restored.
The lands now belonging to both parties formerly belonged to a Mr. Parker. In 1958 he disposed to a Mrs. Thomson the house and lands now belonging to the Respondent. This disposition declared that the subjects were disposed with and under certain burdens conditions obligations and servitudes which were declared to be real liens and burdens on the subjects and it required that they should be inserted or validly referred to in all future transmissions of the subjects under pain of nullity. The Respondent recently purchased these subjects from Mrs. Thomson. In 1959 the Appellant purchased her house and ground from Mr. Parker. It is not disputed that as regards the servitude of prospect Warren Lee is the dominant tenement and the Appellant is entitled to enforce it if it was validly constituted.
This servitude is in the following terms:
"(TERTIO) my said disponee and her foresaids shall not plant or allow to grow any shrubs trees or other plants or build any erections of such a nature as to exclude at present a clear and open view of the sea from the said adjoining ground belonging to me without the consent of me or my successors as proprietors of the said adjoining ground".
The whole case as presented to your Lordships turns on the words "at present" in this provision. The Appellant maintains that when one looks at the provision as a whole it is at once apparent that the inclusion of these words must be due to a blunder, that they neither add to nor subtract from the meaning of the rest of the provision, and that they should be disregarded. The Respondent maintains that they introduce an ambiguity or render the meaning of the whole provision uncertain and that therefore the whole provision is invalid and unenforceable.
No authority precisely in point was cited and I think it best to begin by recalling the principles which...
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...9 by reference to the principle of the faith of the records (Anderson v Lambie 1954 SC (HL) 43, per Lord Reid at 61; Hunter v Fox 1964 SC (HL) 95, per Lord Reid at 99). He submitted that that principle still had a role to play as a consideration affecting the construction of sections 8 and ......
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