Robert Weir v. Gavin Glenny, James M'Robbie, and Robert M'Robbie [1834] UKHL 7_WS_244

UKHL
Robert Weir v. Gavin Glenny, James M'Robbie, and Robert M'Robbie
[1834] UKHL 7_WS_244 · 1834-04-07
Question, Whether a sheriff can competently entertain a plea in defence against an application for interdict, that the defender had, by implication from the terms of a deed, a right of road, and which plea was not confined to the point of possession, but embraced that of right?

Subject_ Property — Servitude. —

Three parties agreed that a canal or mill-lead should be made through their respective properties to propel machinery in works belonging to them, to be maintained at the expense of each, so far as it passed through his lands; but there was no express stipulation as to any right of access along the banks through their several properties: Held (reversing the judgment of the Court of Session,) that the proprietor of the ground on which the road was formed had right to prevent the others from using it, except in the case of obstruction in the water of the mill-lead or actual damage arising to their works.

Subject_ Interdict. —

Interdict refused, where it was not proved that the party complained of had done or threatened to do any thing inconsistent with the rights of the complainer.The river Carron, in Stirlingshire, runs with a rapid descent, from west to east, through property which belonged in 1801 to Mr. William Morehead of Herbertshire, Mr. John Reid of Bonnymill and Tamaree,

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The canal was accordingly formed; and thereafter a corn-mill was erected on the lands of Tamaree belonging to Mr. Reid, and lower down a wool-mill and paper-mill were erected on the lands of Mr. Napier, both of which were situated between the corn-mill and Mr. Morehead's paper-mill. Thereafter Mr. Napier conferred on Mr. Reid a right of road from Mr. Reid's corn-mill through Mr. Napier's lands to the highway. The appellant Weir acquired right from Mr. Reid to the lands of Tamaree, and to the corn-mill, and the water-lead and road, as possessed by Mr. Reid. He also became tenant, under a lease from Mr. Morehead, of the paper-mill at Stoneywood; and he was then in possession of the mills situated at the western and eastern points of the canal. The respondents, M'Robbies, had acquired right to the paper-mill belonging to Mr. Napier, and the respondent Glenny was the tenant and possessor of it.

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In 1829 the appellant presented a petition to the sheriff of Stirlingshire, setting forth, that Glenny “had repeatedly since he entered on possession, and particularly on the 28th day of February last, pretending to have an unlimited right to the said water, and to raise the dam-sluice at pleasure, most unwarrantably, by himself, and others in his service, trespassed on the said lands of Tamaree, and without any authority from the petitioner, and others interested in the said water, or any complaint that the requisite supply of water was in any way withheld or interrupted, raised the sluice of the said dam, whereby the said cut or canal was overflowed, and the banks thereof in several parts were broken down by the overwhelming weight of water thus let loose, to the serious damage of the petitioner's property; that, farther, the said Gavin Glenny has, by himself, and others in his service, been in the practice of using a road which runs along the north side of the foresaid cut or canal, to which the petitioner and his tenants have exclusive right as private property, as acquired by the petitioner's predecessor, the said John Reid, by virtue of a feu contract from the said deceased Archibald Napier, and wherein the said feuar was taken bound to be at the sole expense of maintaining and enclosing the said road for his own use.”He therefore prayed for warrant of service “upon the said Gavin Glenny, and also upon the said James M'Robbie and Robert M'Robbie, for their interest as proprietors; and to find that the said defenders have no right, in virtue of the said agreement or otherwise, to enter upon the petitioner's said lands of Tamaree, or any part

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In support of this petition he averred, that since the formation of the canal it had been maintained and kept in repair by Reid and Napier, and their respective successors, or their tenants, in so far as the same passed through their respective lands, and no farther, and to the exclusion of all interference by the one party with the other; that Reid, as upper proprietor and owner of the ground on which the sluice to the dam was erected, held, while he remained proprietor, the key of the sluice (which was constructed

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In defence, Glenny denied that either he or his servants, on the 28th of February, raised the sluice of the dam; and stated, that on that day the usual supply of water did not come, whereupon his servants, without his knowledge, went to ascertain the cause of the falling off of the quantity, and discovered that an old dike on the lands belonging to the appellant had given way, and that a quantity of stones had fallen into the canal, whereby the canal was choked, and the water made to overflow its banks.M'Robbies, stated, that they had no wish to interfere with the appellant or his lands, so long as the stipulated supply of water was allowed to flow to their machinery; but they maintained, that if the water were interrupted, they had a right to go along the banks of the canal to ascertain where the interruption occurred, and, if they thought proper, to remove it. This, they alleged, they were entitled to do, in the same way as the proprietor

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All the respondents averred, that ever since the canal was formed the proprietors, and their predecessors and tenants of the respective mills had been in the constant practice of going along the road in question to the dam-head, for the purpose of lifting the sluice or letting it down, and of using the road when it was found necessary to repair the dam-dike, or clean the canal; that the road was the only one to the dam-dike; that it was impossible to go and repair it, without passing through the appellant's property; and that the road was left and kept open, in terms of the agreement, for the purpose of allowing the proprietors and tenants in the respective mills to use it in repairing the dam-dike and sluice. They also maintained, in point of law, that it was incompetent for the Sheriff to entertain the complaint, in so far as it prayed for a declaratory finding relative to heritage, viz. that the respondents had no right to use or interfere with the dam and sluice, or the access thereto; and, at all events, that they were entitled to a possessory judgment.

The Sheriff-substitute pronounced this interlocutor:—

mutual accommodation, or motives of friendship and expediency: Finds it clear, from said agreement, that both parties have an interest in the whole cut or canal in question, and a right to the water flowing through it from one extremity to the other; and finds that this interest, and the obligations imposed on each of the parties, necessarily imply a right in both to pass along the whole course of the canal, to ascertain that the terms of the said agreement are duly complied with, and, if not, to enable them to enforce compliance therewith on the part of each other: Finds that nothing relevant has been stated by the defenders to infer a right in them to make use of, any road through the pursuer's lands, farther than may be absolutely necessary as a communication along the canal for the purposes above referred to, or to interfere with the sluice of the dam, so as to increase the flow of water to a greater height than stipulated by the agreement.”
“Finds that there is no incompetency in the form or conclusions of the action, therefore repels the objections thereto: Finds that the rights of parties will fall to be determined according to the legal interpretation to be put on the articles of the agreement founded on in the complaint; and that the allegations by the defenders regarding what may have taken place between the parties, or their predecessors, so far as at variance or inconsistent with the rights thereby acquired, and obligations imposed, are irrelevant, and must be held to have proceeded from

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But, before farther answer, he allowed the appellant a proof of his allegations as to the occurrences on the 28th of February, and to the respondents of their possession, as alleged by them, of the road.

Thereafter, on advising the proof, he pronounced this other interlocutor:—

sixth article of the pursuer's condescendence, some of the defenders servants passed into the pursuer's lands, and towards the place where the water burst through the banks of the canal: Finds it not proved, that on the day this occurred the defender, or any of his servants, had raised the sluice: Finds it sufficiently instructed, that at the time there was no greater quantity of water in the canal than was necessary for the defender's mill, and that the injury occasioned to the canal was not so much owing to the quantity of water in it, as to the insufficiency of the bank at the place it gave way, and to the extraordinary pressure upon it, caused by the water being impeded in its free course by the quantity of stones which fell into the canal a little below the spot: Finds it sufficiently proved, that there has always been an open communication to the dam-dike and sluice from the lower mills, by which the proprietors or occupiers thereof have been in use to proceed to the dam-dike to repair the same and clear away sand, which sometimes accumulates at the sluice; and that they have used this communication at other times, when deemed necessary; and that it is impossible for the defender and his servants to go along the canal to the dam-dike or sluice, for the purpose of repairing the same or otherwise, without passing through the pursuer's lands by the road in dispute, which is the only communication from the lower mills thereto: On the whole, finds that the pursuer has failed to prove that the defender has acted illegally or unwarrantably, and therefore assoilzies him from the conclusions of the complaint, and decerns; and finds the defender entitled to expenses, subject to modification.”
“Finds, from the evidence adduced, that the occupiers of all the mills supplied with water by the cut or canal in question have been in the practice, without interruption, of raising and lowering the sluice at the dam-dike, as occasion required; and finds, that as no arrangement was made by the parties to the agreement founded on in the complaint respecting the regulating of the sluice, each was entitled to exercise his right in this manner: Finds it proved, that at the period mentioned in the

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To this judgment the sheriff having adhered, the

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“Advocates the cause: Finds that it was not competent to the sheriff to determine, from the terms of the contract alone, and without any reference to the possession, that the advocator's property is burdened with the servitude of a road, and that any judgment in the present cause can only be of a possessory nature: Finds it not proved that the occupiers of the lower mills had possessed a road or access to the dam-head, or been in use to regulate the sluice there, for seven years previous to the commencement of this action and that, on the contrary, it is proved that any possession by them does not reach back for nearly so long a period: Finds that as the respondents have no express grant of servitude, or decree of declarator to this effect, and when they have had no possession sufficient to entitle them to a possessory judgment, the advocator, as proprietor of the ground, was justified in applying for an interdict to prevent them or their servants from using the road in dispute; and in so far grants the interdict craved; also grants the interdict craved as to the use of the road to Tamaree Mill, acquired by the advocator's predecessor, by feu contract, from the late Archibald Napier, the respondents making no claim thereto, and decerns: Finds it unnecessary to grant any interdict as to the regulation of the sluice, the advocator's right to the sole regulation following from his exclusive possession of access thereto: Finds the advocator entitled to expenses, subject to modification,” &c.

“ Note ,—The contract is quite silent as to any road or

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As to the possession, it seems clear from the proof, and particularly from the evidence of Mr. Charles Laing and Mr. Munnoch, that for many years after

Footnote

* In regard to this matter it was stated by the respondents, in their appeal case, that in consequence of the Lord Ordinary's observations, particular inquiry was made into the usage of the mills to which his Lordship referred, and it was ascertained, and afterwards conceded on the part of the appellant, when the cause was argued before their Lordships of the First Division, that the Lord Ordinary's impression was entirely erroneous. On the contrary, it was ascertained that the proprietors, or their tenants, of the numerous mills, above twelve in number, on the Water of Leith, from the dam-head at the village of the Water of Leith, at the Dean, down to Bonnington, have access to the dam-head, and a right to regulate the sluice and supply of water as occasions may require. As, in this case, all the proprietors of mills on the line of the canal have a common right in the dam-head, and in the canal itself, there is no special agreement or regulation as to the mode of supplying the water. No one has a controlling power over the others; the right in all and each of the owners of mills is the same, and so is the necessary check or control. There is a standard height, beyond which it is not lawful to raise the sluice, but to that standard height any one proprietor may raise it at any time; and for that purpose, besides a common key, which lies at the village of Water of Leith, for regulating the sluice, several of the mills, particularly those of Canonmills and Stockbridge, have keys of their own, in case of the common key being mislaid or injured. It is moreover true, as stated by the Lord Ordinary, that the lead passes, in many places, through private property, completely inclosed, so as to admit of no road or passage along the banks. In those places there is no regular public road or foot way, but, nevertheless, the proprietors of the mills and their tenants do, upon every necessary occasion, go into the inclosed grounds referred to, for the purpose of removing accidental obstructions, and cleaning out the lead. It is generally cleaned out at stated periods, once or twice in the year, besides on other occasions when, from accident, repairs are necessary. The expense is defrayed by the proprietors of the mills or their tenants, and not by the proprietor through whose lands the aqueduct passes. It is the individual always who hath the benefit of the aqueduct who is liable to maintain it, and also for any injury which may be done by it to the adjacent grounds. Lord Moray and the other proprietors, through whose grounds the aqueduct from the Water of Leith passes, have never questioned the right of the owners of the mills to pass along the banks of the lead, from Bonnington to the dam-head, for the purpose of regulating the supply of water when necessary, and to maintain the lead itself in repair.

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On the whole, the Lord Ordinary is satisfied that there was no possession by the occupiers of the lower mills, or interference by them with the sluice, which was not precarious, and depending on the will of the owner of the upper one, beyond four years from the commencement of the action, and that of the respondents does not reach back nearly so far.”Thereafter the respondents gave in a reclaiming note to the First Division of the Court, who, on the 4th of February 1832, pronounced this interlocutor:—imposes on all concerned an obligation to implement what has been respectively undertaken, and creates a legal interest in all to whom it belongs, to see that it is so done; 3d, in respect that a contract entered into for mutual benefit and advantage also necessarily supposes such concessions of right, and such permissions, hinc inde, as may enable parties to support their agreement, and that the law of Scotland always prefers the preventing of injury or damage to any future reparation by indemnification in the way of damages;—therefore recal the interlocutor of the sheriff and of the Lord Ordinary, and find, first, that in consequence of the foresaid agreement the respective parties concerned, or persons properly authorised by them, have a right to pass along the banks of the cut or canal to examine the same, and see that it is kept in proper repair by all concerned, and that the stipulated quantity of water is supplied to the parties interested, and so as either to prevent apparent injury, or to remedy such when it does happen as speedily as possible, but for no other end or purpose: Second, Find that such right of passing along the banks of the cut or canal, for the purposes above mentioned, is not to be exercised unnecessarily or nimiously; and if any such improper exercise of the right should be attempted, reserve to all concerned right to complain to the Judge Ordinary thereupon: Find, in the whole circumstances of the case, no expenses due to either party, and decern.” *“The Lords advocate the cause; and in respect, 1st, that by an agreement entered into, of date 10th August 1801, between Mr. Morehead of Herbertshire, Mr. Napier of Randolphill, and Mr. Reid of Bonnymill, it was agreed that a dam-dike should be erected across the river Carron, and that a cut or canal should be made of certain dimensions through the lands of the parties in such a direction “as should be found most suitable for all concerned,” and that the parties “should have full power and liberty to erect such mills as they should think proper upon the sides of the canal, each within his property,”— by which agreement an operation was undertaken and executed for mutual benefit and advantage, and in which all were jointly interested; 2d, in respect that such mutual contract and agreement necessarily

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Weir appealed.

Footnote

* 10 S. & D., p. 290.

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Appellant .—The interlocutor is incompetent, because it has decided on the, rights of the parties in regard to an heritable property. It is fixed law that no inferior Judge can decide on a question of heritable right, where there are either opposite titles in competition, or where the existing titles are of doubtful construction. In all such cases the jurisdiction of the inferior Court is limited to the question of possession for the seven years preceding the action. If such possession shall be proved to have followed on a title primâ facie sufficient, the possession must be supported, leaving the party who conceives that there are grounds for setting aside this possessory and prima facie right or title to pursue his remedy, by action of declarator or reduction, in the supreme Court; and as such action is competent in the supreme Court alone, it follows as a necessary consequence, that no action originating in the inferior Court can, when carried by appeal to the supreme Court, be converted into a declarator or reduction. *But in this case, although the action was perfectly competent, yet the defence resolved into an assertion of right to a heritable subject, which could only be maintained in an action of declarator. There was neither title nor proof of possession adduced, to warrant any possessory judgment in favour of the respondents † , and seven years possession is requisite. ‡ Here, although there is no express title of any kind, the Court have by their judgment sustained a title in favour of the respondents.

Footnote

* Erskine, b. i. tit. 3. sec. 19., b. iv. tit. 1. sec. 50.† Buchan against Carmichael, 25th Nov. 1823, 2 S. & D. 526, new ed. 460; Hunter against Maule, 26th Jan. 1827, 5 S. & D. 238, new ed. 222; Saunders against Reid, 26th Feb. 1830, 8 S. & D. 605.‡ Hamilton against Tenants of Overshields, 13th Dec. 1661, Mor. 10618. Ersk. b. iv. tit. i. sec. 50.

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But it is said that this is a question of construction of a contract, and that it was as competent for the sheriff or the Court of Session to determine what was necessarily implied, as what was expressly conveyed by the agreement. This would destroy the distinction between declaratory and possessory actions, for every declarator in regard to titles necessarily implies a question of construction; and nothing can be more clear, both in principle and in practice, than that the inferior Judge is competent only to the question of possession. * If it were competent for him to give any instrument or title regarding heritable property a construction contrary to the possession, the rule requiring seven years possession would be nugatory. The appellant therefore maintains that the interlocutor is incompetent, and that decree should have been pronounced in terms of the prayer of the petition, reserving to the respondents to insist in an action of declarator.But, supposing it to be competent to decide the question as if it had been raised in a declaratory process in the supreme Court, the judgment is erroneous on the merits. It does not proceed upon any express agreement to give a right of passage, but upon an implication that such a right of passage must have been intended by the parties. The reasons assigned for this implication are groundless, whether considered with reference to the object which the parties had in view, as matter of fact, the contract which they made, or the possession which followed upon it, or the principles of law in regard to the right of property.

It cannot be maintained that the formation of an artificial

Footnote

* Watson against the Fleshers of Glasgow, 20th Nov. 1824, Fac. Col.

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Footnote

* Erskine, b. ii. tit. 6. sec. 9.† Stair, b. ii. tit. 7. sec. 10.

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Neither can it be maintained, as a general proposition that wherever a proprietor consents to allow an artificial watercourse to pass through his property for the purposes of machinery below, it is necessarily implied that he consents that all the lower proprietors and occupants, with their servants, are to have constant access along the banks of the aqueduct for the purpose of seeing that it is properly kept. If this were well founded, there would be an unlimited right of common passage along the banks of every stream employed to turn machinery; for all proprietors have a right to prevent any obstructions in the stream, and to have them removed. But it never was pretended that, because of such right, they could at pleasure enter their neighbour's grounds to see that no such obstructions existed. This must always be a matter of arrangement.If the privilege, however, be taken as matter of implication, it was due to the appellant to make reasonable provisions against the abuse of such right. Had the parties themselves arranged this matter, they would have provided, as far as possible, against the chance of such abuse. But the judgment under appeal, while it has introduced an unlimited right in favour, not only of all the original contracting parties, but their tenants and servants, has provided no remedy against the abuses which may arise from the practical assertion of this right.

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Respondents .—On the supposition that the Sheriff was competent to entertain the appellant's petition, there can be no doubt that he was entitled to entertain the respondents defence, and therefore that the interlocutor is competent. In the Sheriff Court they objected to his jurisdiction, in so far as the complaint libelled on a contract relating to heritage; and because the complaint was not rested on possession under the agreement. Both the narrative, and the prayer of the complaint, raised a question of right, if it raised any question at all under the agreement. It contained no petitory conclusion or prayer, properly speaking; and therefore the respondents maintained, both in the Sheriff Court and in the Court of Session, that the complaint as laid should have been dismissed by the Sheriff for want of jurisdiction. * They still maintain that plea, but as the Court below have decided in their favour on the merits, they have no interest to insist in it. Supposing therefore that the action is not to be dismissed, the respondents must be entitled to show that the construction attempted to be put on the contract is not well founded, and consequently that the judgment sustaining their plea is not incompetent.By the nature and provisions of the contract, an interest in, or servitude over, the property of the dam-dyke and lead was conferred on all the contracting parties. Each was empowered to erect such a number

Footnote

* Erskine, b. i. tit. 4. sec. 2., and b. iv. tit. 1. sec. 46; Magistrates of Stirling v. Sheriff , Nov. 1752, Mor. 5784; Rose v. the Magistrates of Tain, 7th July 1827, 5 S. & D. 911, new ed. 846; Wight v. Wilson , * 27th Nov. 1827, 6 S. & D. 132; Thomson v. Donald , 4th March 1830, 8 S. & D. 630.

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There is no precise form of words necessary to establish a right of servitude over property. The burden may be imposed either by express or presumed agreement of parties; and as there are as many varieties of conventional servitude, as there are ways by which property can be burdened, or the exercise of it restrained in favour of another, so the forms of constituting servitudes are also various. † Besides, the establishment of a

Footnote

* Middleton v. the Town of Old Aberdeen, 14th Feb. 1765, Supplement to Mor., vol. v. p. 904.† Erskine, b. ii. tit. 9. sec. 2; Garden v. Aboyne , 27th Nov. 1734, Mor. 14517.

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The respondents, however, ask no extension of the burden laid by the agreement of 1801 upon the appellant's property, or restriction of the burden thereby laid on their property. All they ask is, that he shall permit that to be done, which, from the very nature and terms of the agreement of 1801, it is manifest he was bound to permit.Lord Chancellor .— My Lords, I feel it impossible to take the same view of this question which their Lordships in the Court below ultimately took, and upon which alone their decision was pronounced. This case originated in a petition to the sheriff depute of Stirlingshire, by Weir, the appellant, upon an allegation by him of certain things having been done by the respondents in derogation of his rights of property, and which were not justified (as he set forth) by an agreement, under which he conceived that their right to these things was asserted, and attempted to be exercised. An answer was put in by the respondents, in which, without denying the repeated acts alleged by the appellant, they denied an act alleged to have taken place on the 28th of February, and gave an explanation, and in some sort asserted a right, but not that right which the Court has

Footnote

* Erskine, b. ii. tit. 9. sec. 4; Lord Elchie's Reports, 4th and 11th Dec. 4171, title, Servitude, No. 2.

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In order to ground an application for an interdict in Scotland, as for an injunction in England, the party applying for that extraordinary and summary interposition must satisfy the Court that he not only has a prima facie right on which he proceeds, but that a wrong has

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Adjourned.Lord Chancellor .—My Lords, I formerly stated to your Lordships the views I entertained of the question in this case, and the grounds upon which I find it impossible to arrive at the same result as the learned Judges in the Court below. I stated, that it appeared to me that there were two questions, one of which was, what was the right of the parties under the agreement? and the other was, whether any thing had been alleged in the petition, by the party applying for the interdict, to have been done, or if not done, had been threatened to be done, and proved to be so, which amounted to a wrong, upon a sound construction of the agreement. I am far from intending again to take your Lordships through the whole of the opinion I then gave; suffice it to say, that a further consideration of the case has confirmed entirely the view which I then held of the rights of the parties under the agreement; and it has also confirmed the opinion which I then held, that the facts did

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The House of Lords ordered and adjudged, That the interlocutor complained of in the said appeal be and the same is hereby reversed: And the Lords find it not proved that the occupiers of the lower mills had possessed a road or access to the dam-head, or been in use to regulate the sluice there for seven years previous to the commencement of this action, and that on the contrary it is proved that any possession by them does not reach back for nearly so long a period: The Lords also find, that as the respondents have no express grant of servitude or decree of declarator to this effect, and as they have had no possession sufficient to entitle them to a possessory judgment, the appellant, as proprietor of the ground, has right to prevent them or their servants from using the road in dispute, except in the case of obstruction in the water of the mill-head in question, or of actual damage arising to their works: But in respect it is not proved that the respondents or their servants had done or threatened to do any thing inconsistent with the rights of the appellant, the Lords find, that the appellant was not entitled to such interdict, and therefore refuse the same, but grant the interdict craved as to the use of the road to Tamaree Mill, acquired by the appellant's predecessor by feu contract from the late Archibald Napier, the respondents making no claim thereto; and the Lords find no expenses due to either party in any part of the proceedings: And it is further ordered, that, with the above findings, the cause be remitted back to the Court of Session in Scotland, to proceed therein as shall be just and consistent with this judgment.Solicitors: Alexander Dobie,— Thomas Deans, Solicitors.