Smith v Stewart
| Jurisdiction | Scotland |
| Judgment Date | 13 June 1884 |
| Docket Number | No. 165. |
| Date | 13 June 1884 |
| Court | Court of Session |
Lord Fraser. B., Lord President, Lord Mure, Lord Adam.
Property—Servitude—Res merœ facultatis—Negative prescription.—
A, the proprietor of a feu bounded on the east by a wall built on the property of B, on which A had right to train fruit trees, granted to B a bond of servitude binding himself not to build within twenty feet of the wall, reserving the right to use the intervening ground as a road or street, and to rear fruit trees upon the west side of the wall. A further conferred on B ‘full power and liberty to use the said space of twenty feet in breadth as a road or entry for carts, carriages, and others, and to open up a passage or entry, not exceeding ten feet wide, in said dyke,’ within certain limits. Held that this reserved right, being res merœ facultatis, was not affected by the negative prescription.
In October and November 1824 the Dundee Joint Stock Company acquired in feu certain subjects in Dundee, being part of Donaldson's Croft. Another portion of these subjects had been previously feued to John Baxter, and the two feus were separated by a stone wall, which ran north and south, built by Baxter on his own feu. Baxter's feu was on the east of the other, and the Dundee Joint Stock Company had reserved to them in their title ‘a liberty and servitude in all time coming to rear and keep fruit trees upon the west side of the foresaid dyke’ built by Baxter.
A bond of servitude, dated 13th, 14th, and 20th June 1825, was subsequently granted in favour of Mr Baxter by the company. The bond proceeded upon the narrative of the feu-contract above narrated in favour of the company, ‘and also considering that it was agreed on betwixt us and the other members of the committee of said company, and John Baxter, of Idvies, Esquire, merchant in Dundee, that we should grant and deliver to him, his heirs and successors, a bond restricting us and our assignees, and the other members of the said Dundee Joint Stock Company, from building nearer to the garden-wall belonging to the said John Baxter, on the east side of said Donaldson's Croft, than twenty feet all the way from top to the bottom “of the ground feued to us as aforesaid'; and he became bound to pay to us, for behoof of the Dundee Joint Stock Company, at and after the rate of £9 sterling per fall of the ground over which the said restriction is to extend, as the value of said servitude and others.’ It further bore that in consideration of the sum of £114, 5s. the company bound themselves as follows:—‘We shall not at any time build or erect any house or other fabric or building whatever within twenty feet of the said John Baxter's said garden-wall, nor upon all or any part of the said piece of ground lying within the said space; reserving always to us, our feuars, tenants, and successors in said subjects, the right and privilege to make and use the said piece of ground as a road or street, and also reserving to us, and our successors in said subjects, the liberty and servitude in all time coming to rear and keep fruit trees upon the west side of the foresaid dyke built by the said John...
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