Earl of Zetland v. Hislop and Others

Taking these feu-rights singly and on their terms, I am of opinion that there is nothing in these conditions which might not be enforced by the superior, or which are in themselves incapable of transmitting against a singular successor. It is not necessary to enlarge on the general rules of our jurisprudence on this head, for they are too well fixed to be the subject of controversy. The nature of a feu-right is surely matter too elementary to admit of doubt. It is a subinfeudation granted mediately or immediately by or from a Crown vassal. The superior remains the owner, burdened by the feu-right; but the dominium utile, as opposed to the dominium directum, is transferred to the sub-vassal. The superior's right over the property is not and cannot be in any respect one of servitude. His power to introduce such stipulations into the rights of his feuars, and his title to enforce them, depend solely upon his supereminent right in the land, constituted by his own infeftment. The nature and effect of restrictive conditions such as the present contained in parts of the feu was exhaustively considered and explained in Lord Core-house's opinion in the case of the Tailors of Aberdeen, in which the whole Court substantially concurred, which not only places the true doctrine on this head beyond dispute, but supersedes the necessity of any further exposition. When feuars of the same superior endeavour to enforce such restrictions against each other, their jus quæsitum has more analogy to servitude; but as between superior and vassal servitude is in no sense the foundation of the right. The enactments of a right of servitude are inconsistent with the relation of superior and vassal.

True, the superior before he can enforce such stipulations must have a legal interest to do so. He has always a legal title, but the Court will not allow him to put such stipulations in force if it be shown that he has no interest—that is, if he be trying to enforce an obligation the fulfilment of which can be of no benefit to himself (it is said patrimonial benefit, and I do not differ), and if it be therefore insisted in, emulously, capriciously, or oppressively. This, however, is a consideration applicable to the circumstances in which the superior attempts to put the clause in force more than to the nature of the condition. The superior has always a title to bind his vassal and his successors, provided the restriction enter the record, and unless the stipulation is illegal, or contrary to public policy, or is in itself incapable of being enforced.

Further, were this a case of a single feu, I am of opinion that this particular condition is not illegal and is capable of being enforced. This was asserted and assumed in the Dunoon case ( Ewing v. Campbell), and the decision is directly in point and to my mind conclusive.

I was surprised to hear it doubted that the case was a direct decision—that a clause to the effect of the present was a legal and enforcible stipulation, seeing one of this nature was not only sanctioned but enforced in it.

The question raised in that case was whether prohibition against using a feu for the purpose of a public-house was contravened by building a hydropathic establishment. The law was assumed to be so clear that even the party impugning the condition did not venture to say that it was not legal in itself or inconsistent with the rights of property, but rested his whole case, as the Court did, on the question whether the building in question came to be within the prohibition. I look upon that case as being all the stronger that the general law was not controverted. It was simply the last of a long series of adjudicated cases on cognate conditions, and its application is clear. The practical dispute whether the hydropathic establishment was a public-house could never have arisen unless the condition was in itself effectual. All these matters are trite law, and in my opinion do not admit of doubt. There is, however, one peculiarity in the present case, and it is one not without significance, namely, that the superior reserves the right to waive the condition, and this shows that the other feuars have no power separately to enforce it against each other. This is material, because it has a bearing on the nature of the interest involved in the right.

In my view, however, the present case ought to be resolved on other grounds. The practical question is, Whether the pursuer is entitled to enforce these stipulations for the purpose of regulating the social condition of a community amounting to 5000 inhabitants, and in fact incorporated under the police statutes and under a municipal management of its own? It is plain enough that the more the operation of these restrictions excludes, the more the superior's interest recedes from, a real patrimonial character, and necessarily approaches the confines of effects which are at war with important social and public interests. In certain circumstances and within certain limits such prohibitions as this regarding the use to which premises are to be put are intended to protect direct patrimonial rights. In particular quarters of large towns, in which the value of premises depends on the use to which they are put, such restrictions often have a direct effect of enhancing the value of the property in the neighbourhood. So a man may reasonably provide in feuing a piece of ground at the corner of his park that it shall not be used as a public-house. No one ever supposed such a condition to be contrary to the principles of property according to our law; it is entirely in conformity with it, according to rules followed in a long series of authorities. But when one dwelling-house is multiplied into 1000, and 5000 persons are interested instead of one, the matters become very different. As the public interests grow larger the individual interests necessarily grow less. Here I think it has disappeared altogether, and instead of reflecting the patrimonial interest of the superior, represents only individual opinions, philanthropic and social on his part. On the merits of these views of course I say nothing, except that I have quite as much respect for those holding one set of views as for those holding the other. Our opinion on such matters is of no more value, in no respect better, than that of the parties in the case; but I think it is quite clear that we are now asked to enforce this restriction, not for the protection of any property right in the pursuer, but in order to benefit the moral and social wellbeing of the community of Grangemouth. But this is to enable the pursuer to use his power as superior for the purposes of a benevolent disposition leading directly to collision with the municipal authorities on one hand, and in effect putting it in the superior's power to create a trade monopoly on the other. Now, I think we are not bound to give effect to this clause looking to the admitted object and the necessary result of doing so. Lord Corehouse, in the following passages in his opinion in the case of Coutts, expresses the ground of my opinion in the present—“Thus,” he says, “it was often a condition in a feu-charter that the vassal should bring all his malt to the superior's brewery to be made into ale, and to have all his iron-work manufactured at the superior's smiddy. These conditions have fallen into desuetude, but they have never been declared illegal by statute. The Court, however, at present refuses to enforce them, as being inconsistent with public policy, for it would be a plain injury to the community if the proprietor of a piece of land would not employ the brewer or the smith whose work he most approved”—( 1 Rob. App. 318). Here circumstances have proved too strong for the superior, and the community which he and his predecessors have helped to create has outgrown bonds which might have been reasonable or useful when first imposed but which are unsuited to the times.

I have only to say, in conclusion, that I reserve my opinion on the question whether such cases would be effectual under a long lease. If the term were equivalent to a perpetuity the same result would probably follow.