Sir Robert Menzies, Baronet v. Lieutenant-General Macdonald (a) [1856] UKHL 2_Macqueen_463
[1]In the language of Scotch conveyancing, there is a recognized distinction between commonty and common property.[2]One established difference is that, while rights of commonty attach inseparably to certain lands, and imply, inter alia , pasturage for the bestial which these lands can winter, and a share, in case of division, in proportion to valued rent, rights of common property , on the other hand are rights in fixed and specific, although undivided shares to a separable and distinct subject, which may or may not be held along with the individual estates of the common proprietors.[3]Whatever analogy, if any, may be drawn between a commonty and a lake belonging to the adjacent proprietors merely in respect of frontage, there can be none here, where, by final judgment, the general grant (with possession), and the express grant, have been held to vest in the two parties the common property of the lake, whereby each is a proprietor of a pro indiviso half, without reference either to frontage or valued rent.[4]This being so, a disposition by one of them, which makes no mention of any share of the pro indiviso half of the lake, cannot be read as a disposition of any such share, simply because it conveys a part of his individual lands, “with lakes and pertinents.”[5]Even if the disposition could be so read, it would be ineffectual without the consent of Menzies; for this reason amongst others, that multiplication of the joint proprietors must necessarily alter and prejudice his position, contrary to the implied condition of the pro indiviso right.[6]If either party be dissatisfied with the restrictions he is thus under, his course is to dissolve the communion in one or other of the ways already pointed out. The judgment appealed from was pronounced by the Second Division of the Court, on the 10th March 1854. It proceeded “in respect of the opinions of the majority of the whole Judges,” and assoilzied the Defender (General Macdonald), from the conclusions of Page: 470 ↓ the action. The Pursuer (Sir R. Menzies) thereupon tendered the present Appeal. The Solicitor-General(a) , Sir Fitzroy Kelly , Mr. Rolt, and Mr. Anderson for the Appellant. The question is whether the alienation of the ripa carries the lake. If it does, an owner may divide his land infinitesimally, and on every distinct alienation the question will arise which is the subject of this litigation. We contend that the right here is pro indiviso , and incapable of alienation. The Respondent builds an inn; the landlord attracts guests, and the result is, that the Menzies' enjoyment is deteriorated. If this alleged right was pertinent to the Barony of Strowan, it still remains with Robertson. The true rule of Scotch law, and the true distinctions recognized by it, are clearly stated in Mr. Bell's Principles(b) . Scott v. Lindsay(c) is an authority in our favour; so likewise is Anderson v. Dalrymple(d) . The Lord Advocate and Mr. Roundell Palmer for the Respondent. Woods and lochs pass as “pertinents.” This Lord Stair affirms(e) in a part of his great work, which contains all the law on the subject. Craig(f) is to the same effect. And no less strong is Erskine in his Institute(g) ; commonty and common property are one and the same, and Mr. Bell is wrong where he lays down the contrary. This question has very lately been considered by the Court of Session in a cause argued for nineteen days, that of Gordon v. Grant(h) , where the doctrines we contend for were deliberately recognized and established. The decision below, we submit, must be affirmed. The Solicitor-General replied. Footnote ( a ) Sir R. Bethell. ( b ) See Lord Deas' opinion, suprà, suprà, p. 468. ( c ) 22 July 1635; 12 Morr. 771. ( d ) 20 June 1799. ( e ) B. 2. t. 3. s. 73. ( f ) B. 2. t. 8. s. 35. ( g ) B. 3. t. 3. s. 56. ( h ) 22 Scottish Jurist, Nov. 1849. Page: 471 ↓ Lord Chancellor's opinion. The Lord Chancellor (a) : The object of the present action was “to prevent Lieutenant-General Macdonald, his family, friends, and tenants, from exercising the privilege of boating, fishing, and floating timber, and otherwise using the lake” called Loch Rannoch. The title of the Appellant dates from a very early period, viz., from the year 1502, when King James the Fourth of Scotland, by charter under the Great Seal, gave and granted to Robert Menzies, and his heirs and successors, the lands of Downan, and other lands and heritages therein mentioned, which were thereby erected into a Barony, to be called the Barony of Rannoch, upon which charter the said Robert Menzies was infeft on 17th March 1510. The title of Strowan was not carried farther back than the year 1636. By a crown charter of resignation, dated the 27th of June 1636, in favour of Alexander Robertson, the Barony of Strowan, which includes the piece of land on the north side called Kinloch, is described. The description is— “Totas et integras terras et baroniam de Strowan, comprehendentem omnes et singulas terras, molendina, silvas, piscationes, lacus, aliaque particulariter subscripta;” and then it adds “cum piscariis lacubus,” and others. This property, that is, the Barony of Strowan, afterwards came to the Crown on the attainder of its then owner, about the middle of the last century, I think in the troubles of 1745. But afterwards, in 1785, it was restored to Alexander Robertson by the same description as that contained in the original charter of 1636. Disputes arose soon after 1785 between Menzies, who was the owner of the Barony of Rannoch comprehending Footnote ( a ) Lord Cranworth. Page: 472 ↓ the north side of the lake, except that small piece at the bottom, and Robertson, as the owner of the Barony of Strowan, as to their respective rights in and over the lake, which led to cross actions between them. The two actions were afterwards conjoined, and a final interlocutor was made in the conjoined actions on the 2d July 1799. That decision conclusively establishes the rights respectively of Menzies and Strowan to this lake as joint property. The Appellant, however, contends that Strowan could not alienate a portion of the Barony, so as to give to his disponee the right to use the loch for fishing, boating, and so on, for that by such alienation he would be making the interests of Menzies less than it in fact is; that he would be thus making him an owner to the extent of one third of the lake, instead of one half. The Appellant insists that the ownership of a lake is a jus individuum, incapable of severance; and that where there are two joint proprietors of such a right, one of them cannot, without the consent of the other, introduce a third. That such is the law in reference to some property there is no doubt. For instance, in the case of a castle for defence, you cannot grant a portion of it; the nature of the property prevents a subdivision. There is also a further point raised by the Appellant here, namely, that even if Strowan had the power of giving a right of using the loch for all the purposes for which he can use it himself, yet that, in fact, no such right was conferred by the conveyance which he made in 1828. This is a question depending on the construction of the particular deed, and is of inferior importance to the other, which involves principles affecting the general rights of two or more co-owners of a loch. Page: 473 ↓ Both parties, it is to be observed, start from the interlocutor of 1799, which established the joint ownership. The Lord Ordinary was of opinion, that treating Rannoch and Strowan as joint owners of the loch, there was nothing in the nature of the property to prevent either of the co-owners from alienating any portion of his interest, provided only that he and his alienee could not together take a greater interest in the loch, and the use of it, than he alone enjoyed before his alienation. The argument of the Appellant proceeds upon the assumption that the right to a loch is a right incapable of division. But upon what does this rest? The proposition comes strangely in a case which is founded upon the joint ownership of the two. There is nothing in the law of Scotland, so far as I have been able to discover, to prevent the owner of a loch from alienating any portion of it as he may think fit. So also, when the right to a loch is held as a mere pertinent to land. If, indeed, the effect of alienation by one or two co-owners should be to deprive the other owner of the full right as to his moiety, then that would give a right of action for regulation of the enjoyment. But a similar right would exist independently of alienation, if one of two co-owners should use his right in excess, so as to interfere with the right of the other. To illustrate this, suppose it were not possible for more than any given number of boats, say a thousand, to be simultaneously engaged in fishing upon the lake, Sir Robert Menzies would be entitled to have five hundred so employed, and Strowan would be entitled to the other five hundred. Strowan could not, by alienating to others, give a right to more than his due share. But if he keeps within that limit, Sir Robert Menzies has no right to complain. It is the same thing to him whether the right is exercised by Strowan himself, or Page: 474 ↓ by others deriving title under him. In either case, Strowan or his disponees might be restrained from any excessive exercise of the right enjoyed in common with another; but Strowan could not be prevented from exercising, subject to the liability to be thus regulated, the right incident to property in general of alienating it as he may think fit. It was, indeed, argued that the right to a loch is a jus individuum, incapable of division, at all events incapable of division by the act of the party. That was a necessary restriction of the argument, because it is clear that the right to a loch might descend to two heirs, who might take in coparcenery, and in that case it is not contended that the right might not be divided. I have searched through all the books, that would throw light upon the subject; but I can find no ground whatever for such contention. The cases relied upon do not sustain it. The old case of Scott v. Lindsay merely decided that a party claiming under a special infeftment of a lake might set up a valid title to exclusive possession, even against a party who had been previously infeft in certain lands cum lacu piscationibus, &c., and who claimed under that infeftment to have continually exercised the right of fishing, and other rights on the loch : and so the Court held. That case might have been relied upon, as affording a cogent argument in the contest raised by Menzies in 1798, but it is inapplicable to the present case. The case of Anderson v. Dalrymple , decided in 1799, is also inapplicable to the question now under discussion. It was there decided, that where two or more persons are entitled to the common use of a passage leading to their respective apartments in a house, no one of the persons interested can alter, even Page: 475 ↓ by improving, the passage in which there is this common interest, without the consent of all. I have no doubt of the correctness of that decision, and if here Strowan had without the consent of Menzies attempted to drain the lake, the case cited would have been an authority to show that he could not do so; but it is no authority to show that the owner of one of the rooms in the supposed house to which the passage led could not alienate that room or any portion of it to another, and that such disponee would not have a right to use the passage. Reliance was then had upon two cases, in which it was held that where there are two joint owners of a muir, one of them cannot, without the consent of the other, let to a third person the right of sporting over it. Those cases, however, proceeded upon the special nature of the right attempted to be raised. It certainly was not meant to be decided that one of two joint owners of a muir may not sell his interest, or any share of it, to as many joint purchasers as he may choose. With respect to the correctness of the decision itself, I am not called upon now to express an opinion. The same principle must govern the ownership by two or more owners in common of a loch, which is the case here. And I, therefore, concur with the great majority of the Judges below, in the conclusion that it was competent to Strowan, in 1828, to sell and convey to the Respondents a right to the use of the loch as pertinent to the lands of Kinloch. With reference to the other question, namely, whether any right to the loch was, in fact, conveyed to the Respondent by the conveyance of 1828, it is to be observed that the conveyance is, so far as relates to the lands conveyed, in the same language as occurs in the crown charter of resignation of the 27th of June Page: 476 ↓ 1636, when Christopher Robertson became the owner of the Barony of Strowan. The description in that charter is as follows:— “Totas et integras terras et baroniam de Strowan, comprehendentem omnes et singulas terras, molendina, silvas, piscationes, lacus,” and so on, “cum castris, turribus, fortaliciis, locis, pomariis, hortis, toftis, croftis, molendinis, multuris, silvis, piscariis, lacubus,” &c. In the disposition and sasine whereby the lands of Kinloch were conveyed to the Respondent, the description is substantially the same, except that it is in English:— “All and whole the five-merk lands of Kinloch, of old extent, with castles, towers, fishings, lakes, forests, and pertinents of the same.” Now the description in the charter of 1636, of the whole of the lands therein described as making up the Barony of Strowan, coupled with the general words, “cum piscariis, lacubus, et omnibus earundem terrarum pertinentes,” was held, in 1798, to include a right to the use of the loch for the purposes of fishing, boating, and floating timber; or, at least, it was held that with the usage it might be so interpreted. And that being so, I think it follows as a necessary consequence, that a subsequent disposition of a specific part of the lands constituting the barony, together with the same general words added, must be taken to have the same effect; that is, to give to the disponee of part of the lands of the barony, as pertinent thereto, the same rights in the lake, in respect of the parts so conveyed, as he had himself taken on obtaining a conveyance of the whole; subject, of course, to the observation that, as between Menzies on the one hand, and Strowan and his disponee on the other, no greater or more extended rights could he enjoyed by the latter than if the whole barony had remained entire and unsevered. Page: 477 ↓ For these reasons, my Lords, I entirely concur in the judgment of the Court of Session. Interlocutors affirmed, and Appeal dismissed with costs . Counsel: Grahame, Weems, and Grahame— Richardson, Loch, and M'Laurin. 1856