Lothian Regional Council v Rennie
| Jurisdiction | Scotland |
| Judgment Date | 01 March 1991 |
| Docket Number | No. 20. |
| Date | 01 March 1991 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION.
Heritable property and conveyancing—Real burden—Clause in disposition requiring disponees to "maintain the supply of water … to provide an adequate flow to cleanse and drain … the Mill lade … to the reasonable satisfaction of us and our successors"—Whether clause too vague to be enforceable as a real burden.
The defender's predecessors in title purchased an area of land which formed part of a mill lade. In the disposition in their favour there was a clause obliging them to maintain a supply of water to provide an adequate flow to cleanse and drain the remainder of the lade through a village, all to the reasonable satisfaction of the pursuers and their successors. Subsequently they infilled their part of the lade and installed a 150 mm. pipe to carry the water that had formerly run through it. The pursuers sought decree ordaining the defender to maintain the supply of water in terms of the condition in the disposition, maintaining that the pipe did not provide an adequate supply for the purposes mentioned therein. The question whether the condition in the disposition was viably imported as a real burden had been argued before the sheriff and sheriff principal, both of whom had held that the condition was void from uncertainty and dismissed the action. The pursuers appealed to the Court of Session.
Held (diss. Lord McCluskey) (1) that the intention of the condition was not to maintain the existing supply of water as it was at the date of grant but only to require a supply of sufficient water for the purposes of cleansing and draining a further part of the lade and that what was necessary for that purpose might be a matter of opinion; and (2) that use of the words "all to the reasonable satisfaction of us and our successors" was conclusive in the respondent's favour as it could not possibly be said that any singular successor could ascertain within the four corners of the deed what was the extent of his obligation, and the degree of precision necessary in the constitution of a real burden was accordingly lacking; and appealrefused.
Per Lord McCluskey (dissenting) that the meaning of the condition was clear; the pursuers simply wished to ensure a sufficient supply for cleansing and draining downstream, and that the requirement of reasonable satisfaction, read in that context, could not be read as enlarging the obligation and was similar to phrases which had been interpreted as giving the court the right to review and determine reasonableness.
Lothian Regional Council raised an action of specific implement in the Sheriffdom of Lothian and Borders at Haddington against Ian Graham Rennie in which they sought to have the defender ordained to maintain a supply of water in terms of an obligation said to have been created in a disposition in favour of the defender's predecessors in title.
After debate, the sheriff held that the condition said to have created the obligation was void from uncertainty and dismissed the action. The pursuers appealed to the sheriff principal who adhered to the sheriff's decision.
The pursuers then appealed to the Inner House of the Court of Session.
The cause called before an Extra Division, comprising Lord McCluskey, Lord Sutherland and Lord McDonald.
At advising on 1st March 1991,—
LORD MCCLUSKEY.—This is an action for specific implement in which the pursuers and appellants seek to have the defender and respondent ordained to maintain a supply of water in accordance with an obligation said to have been created in a disposition recorded on 9th August 1982. The disposition effected a transfer from the appellants to the firm of D. V. Rennie & Co. of the title to the lands described in the disposition, including part of a mill lade. The present defender is a singular successor of that firm. At the time of purchase the lade was open but the disponees thereafter infilled their part of the lade. In place of it they provided a flexible pipe but, according to the averments, the effect was radically to reduce the rate of discharge of water from the former lade into the lade downstream, still belonging to the appellants. A dispute has now arisen as to the right of the appellants to insist upon the maintenance of the supply of water from the disponed mill lade to that part of the mill lade owned by them. After debate, the sheriff dismissed the action. On appeal, the sheriff principal refused the appeal and adhered to the interlocutor of the sheriff.
In this appeal, the appellants move the court to recall the interlocutors pronounced by the sheriff on 3rd May 1989 and the sheriff principal on 28th September 1989 dismissing the action. Since those interlocutors were written, certain amendments have been made to the process as a result of which there is now a single defender, the respondent. Another amendment, allowed at the bar at the end of the debate before this court, has effected the deletion from the crave of that part of it which specified the precise means whereby the flow of water mentioned in the first part of the crave was to be achieved. In the result, the crave now reads as follows:—"The pursuers crave the court to ordain the defender within 30 days or such other period as the court may appoint to maintain the supply of water in that part of Mill Lade disponed to D. V. Rennie & Co. by disposition in favour of the said firm by the pursuers dated 9th July and recorded in the Division of the General Register of Sasines for the County of East Lothian 9th August both months in the year 1982, to provide an adequate flow of water to cleanse and drain the remaining parts of Mill Lade through the village of West Barns, not forming part of the subjects disponed, all to the reasonable satisfaction of the pursuers; and for the expenses of the action."
After hearing debate, the sheriff, on 3rd May 1989, dismissed the action and sustained pleas no. 1 and 3 for the then defenders. It was accepted before us that the course that the sheriff should have followed in relation to the pleas-in-law was to sustain the first plea-in-law only and to dismiss the action in respect of that plea.
The debate before the sheriff was concerned with one issue only, namely whether a provision in the disposition created a real burden enforceable against singular successors or, alternatively, was couched in such terms that it was void for uncertainty and unenforceable. The provision is in the following terms:—"But also with and under the following burden, namely that our said disponees and their foresaids shall, so far as within their powers, maintain the supply of water in the said Mill Lade to provide an adequate flow to cleanse and drain the remaining parts of the Mill Lade through the village of West Barns, not forming part of the subjects hereby disponed, all to the reasonable satisfaction of us and our successors."
When the appellants sold the burdened land they were the proprietors of the mill lade both in the area of land disponed and downstream thereof. They are still proprietors of the land containing the lower part of the mill lade which, it is said, flows through the village of West Barns, Dunbar, East Lothian. The note annexed to the interlocutor of 3rd May 1989 discloses the reasoning of the sheriff. He says that there is "an obvious inconsistency" in the statement of obligation, namely:—"to cleanse and drain the remaining parts of the Mill Lade through the village of West Barns, not forming part of the subjects disponed".
Both he and counsel then acting for the pursuers thought it appropriate to treat the words "and drain" as being an error and concluded that the proper course was to treat them as pro non scripto. In so far as it appears from the sheriff's note that this was a concession made by the pursuers, that concession was withdrawn before us. Counsel for the pursuers argued that there was in fact no difficulty in understanding an obligation "to cleanse and drain" the mill lade; it was plain from the ordinary dictionary meaning of the word "drain" that a flow of water which cleansed the mill lade would also help to drain it. I did not understand counsel for the defender and respondent to challenge the appellants' right both to withdraw the concession and to submit that the expression "to cleanse and drain" was comprehensible and meaningful in the context. However, the respondent maintained the criticism which the sheriff had accepted; that criticism related to the content of the obligation supposedly imposed by these words: it was impossible to know from them with any precision what the proprietor of the burdened lands had to do and what standards of cleanliness or drainage had to be achieved in the varying conditions that were likely to occur over the years. That argument was one which found favour with the sheriff. He was not impressed by the suggestion that the words in the provision, namely, "to the reasonable satisfaction of us and our successors" made the obligation any more precise, or easier to understand. The sheriff was unable to find in the words of the provision the answer to what he considered to be "the real question", namely "how much water must the proprietors keep in the lade and how much must they allow to be...
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