Lord Justice-Clerk —The question in this case is, whether the Dean of Guild has rightly refused a lining to the appellant for intended buildings on his property. There is no question of encroachment on the property of his neighbours. His plans show no erections which are not on or within the limits of his own boundaries. But it is maintained by a neighbouring feuar that he cannot build up to the edge of his property to the height shown by his plans, in respect that by doing so he will shut off the light from two windows in the back wall of his neighbour's property.
When the titles are examined it is apparent that there is nothing in them which either confers any right on the holder of the one lot over the other, or declares any restriction on the right of the holder of the other lot.
The original title is a contract of ground-annual in 1818 by which four steadings or plots of ground numbered 82, 83, 92, and 93 on a plan were disponed to George Duncan. In 1850 the trustees of the original disponee disponed to the predecessors in title of the respondent Clark the lot now held by Clark, viz.. 92. In 1851 Duncan's trustees conveyed to the predecessors in title of the appellant lot No. 83.
The two subjects are separate and independent subjects, and there being nothing in the titles to affect the ordinary rights of a proprietor, it lies upon the respondent to show some legal ground on which the appellant is precluded from free use of the subject conveyed to him. He does not do so by any evidence of express grant, which in a case of negative servitude is essential. There is nothing in the titles to prevent the application of the ordinary rule of law that the proprietor of a plot of ground is entitled to build on it—the whole of it—in so far as his neighbours are concerned, and that unlimited as to height, unless there be some public or municipal law by which restriction is ordered in the public interest. Prima facie there is therefore here no ground for holding that the appellant is under any restriction as to his building rights. For it is undoubtedly not the law that because a feuar has had windows overlooking a neighbour's property for any number of years the feuar cannot exercise his ordinary rights, if doing so will interfere with light and air derived previously from off the feuar's property. But the respondent founds upon the case of Heron v. Gray . But that case was different from this, in that the subjects were similar to what is found in towns, where there are tenements held by several proprietors on the same plot of ground, one it may be having the ground floor with a yard or back-green behind, and others having their property only in upper or lower flats. It has been held that in such a case—and it was so held in Heron v. Gray —that those in the upper or lower flats are protected from the proprietor of the ground floor who has the back-green behind, by which alone the houses above or below can have light and air at the back, and that he is not entitled to put buildings on the green so as to close up at the back his neighbour's houses above or below him built on the one lot of ground. But there is no such case here. The lots are separate lots, described as bounded by one another. The cases of King v. Barnetson and Dundas v. Blair appear to me to be in point. In both of these cases there were windows which had overlooked the other property, in Blair's case for about 100 years. Yet it was held that where the windows of a property overlooked a lane, which was described as a boundary, the proprietors of the lane could not be prevented from building on the lane, although by doing so the windows were rendered useless. In King's case one feuar took a lot of ground, in the title to which it was declared the feuar was then erecting a tenement on a plan approved of by the pursuer. The next lot was afterwards feued to another without any restriction in the title. It was held that the approval of the plan of the first feuar's building could not restrict the rights of the new feuars whose title was unrestricted. The principle upon which these cases proceeded was that grant is necessary to restrict the rights of a proprietor, and a servitude of light cannot be implied as against a subject the titles to which impose no restriction.
The decision of the Dean of Guild should in my opinion be recalled, and the case remitted to him to grant the lining.
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Lord Trayner —The Dean of Guild pronounced the decision now appealed against in deference to the judgment of this Court in the case of Heron v. Gray , which he says has settled that a “servitude of light may be established by implication.” Of course he means a negative servitude, for there is no other kind of servitude pretended to on the part of the respondent in this appeal. If Heron v. Gray determined that as a general principle a negative servitude can be established by implication, then it is inconsistent with the law of Scotland as laid down in the text-books and in many decisions. But I do not think Heron v. Gray laid down or was intended to lay down any such principle. The explanation of that decision was—I think rightly—pointed out by the Lord President in the course of the discussion in the subsequent case of Dundas v. Blair . The decision, his Lordship said, was not a decision on the law of servitude, but was a decision based on what he called the law of the tenement—that is, the law or rule which regulates the respective rights of persons who hold parts of the same building inter se . If the case of Heron v. Gray is to be regarded as based on the law of servitude, then it is, as I have said, inconsistent with earlier decisions, and was virtually overruled by Dundas v. Blair . The latter case does not appear to me in any material respect distinguishable from the present case, and following it, I think the Dean of Guild should have granted the lining which the appellant asked.
The respondent referred to the case of Cochran v. Ewart as supporting his contention. If that were so, of course we would be bound to follow that decision. But that case and the present appear to me to be very distinguishable. I do not go into the details of Ewart's case, because they are very familiar, but it is obvious that the primary and indeed essential difference between that case and this is, that there the question related to a positive servitude, while here it is a negative servitude. The rules of law applicable to these several rights are quite different. The decision in Cochran v. Ewart was that a grant of positive servitude might be implied from a certain possession and use, one of the strong points in favour of such an implication being that the servitude right claimed was necessary to the enjoyment of the subject claiming the servitude. Here there is no room for such a decision, because a negative servitude is not implied, and can only be constituted by grant. Again, as distinguishing this case from Ewart's , it may be observed that there one tenement was divided between two disponees. Here no tenement has been divided. The buildings now held by the parties respectively are and have always been separate tenements, erected on land laid off originally as separate building stances. They have remained separate tenements ever since they were so laid off.
Lord Moncreiff —I am of opinion that the Dean of Guild has come to a right conclusion, although he himself seems to have some doubts (which at first I was inclined to share) of the soundness of his own judgment, or rather of the application of Heron v. Gray . What the petitioner proposes to do is to build up to the boundary of his property, the effect of which would be “to deprive the objector's property of light and air to a material extent, and to prevent certain of the rooms in the property being used as sleeping apartments.” The question of law which we have to decide is whether the objector (the respondent) is entitled to resist this deprivation of light and air.
The history of the case is correctly stated by the Dean of Guild in his findings. In 1818 George Duncan, by contract of ground-annual, acquired four steadings or plots of building ground, which adjoined each other, numbered 82, 83, 92, and 93 on the relative ground plan. Until 1850 these four lots belonged to the same proprietor—first, George Duncan, and subsequently his trustees. But in 1850 the trustees of George Duncan, who were then the proprietors, disponed to Joseph Hutchison senior and John Hutchison, the predecessors of the respondent, part of the property which they then possessed, being lot No. 92, and also part of lot No. 83, which adjoins it on the west. This shows that although the lots were originally acquired as separate the proprietors dealt with them as one undivided property. In 1851 the remainder of lot 83 was conveyed by George Duncan's trustees to the predecessors of the petitioner, the appellant.
It is contended for the appellant that a negative servitude, such as is claimed by the respondent, can only be constituted by express grant and in writing, and that it cannot be constituted by implied grant. This as a general proposition is undoubted, but (apart from prescription) it equally holds as to positive servitudes. No doubt a positive servitude may, and a negative servitude cannot, be acquired by prescription; but the reason is that a negative servitude is “incapable of possession, and so of prescription”—Bell's Pr., sec. 994.
But both positive and negative servitudes interfere with the exclusive and absolute use of the servient tenement, though in different ways, the former by enabling the dominant owner to exercise actively some right over or use in the servient tenement, and the latter by limiting the servient owner in the use of his ground—Bell's Pr., sec. 982.
Now, apart from prescription, a positive servitude cannot any more than a negative servitude, as a general rule, be constituted without express grant. But to this there is an exception, viz., where (1) there is a severance of two tenements previously possessed together, and where (2) the easement is either absolutely necessary, or at least necessary for the reasonable enjoyment of the tenement which is first given off; and (3) is in existence at the date of the severance—Bell's Pr., sec. 992:—“When an owner conveys a part of his tenement as it has been possessed by himself, all such uses
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I see no good reason why this exception should not equally apply to a negative servitude. In the present case all the requisites concur. When the respondent's predecessors asquired their property in 1850 that property and also that possessed by the appellant were in the hands of the same proprietor. The ground and buildings upon both plots were substantially in the same condition and position as they are now, and their relative positions were patent to the appellant's predecessor. And lastly, light and air for the back windows of the tenement on the respondent's ground were then and are now essential for the reasonable enjoyment of that property. I am therefore of opinion that the principle on which Ewart v. Cochrane , 4 Macq., p. 117, was decided clearly applies. Indeed, the very point has been decided in the case of Heron v. Gray , 8 R. 155. The rubric of that case is as follows:—“A property company purchased in one lot a villa and surrounding garden ground. Thereafter they divided the subjects into two lots, the first of which consisted of a shop, which they had erected on the plot of ground lying to the front of the villa, and two cellars or warerooms—part of the sunk storey of the villa—which for more than forty years had received light and air through two small windows in the south gable, which overlooked the plot of ground adjoining. This lot the company sold to A, together with the solum of the piece of ground on which the shop was built, and a right of property in common with the proprietors of the villa in the solum of the piece of ground on which the warerooms were situated. In the following year the company sold the remainder of the property to B. This lot consisted of the villa other than the part of the sunk storey already sold to A, together with a right of property, along with A in the solum of the piece of ground on which said house was built, together with the piece of ground or green lying to the back and south of the house, with right to make use of it as absolute owner, it being thereby declared that there was no restriction against building, or any right of servitude affecting the said piece of ground. B erected on the piece of ground to the south of the house a wooden screen in such a manner as to obstruct the windows of the warerooms. Held that he was not entitled so to obstruct the windows, on the ground that A's title gave him, as at the date of the purchase an implied servitude of air and light over the said plot of ground, and that the subsequent declaration in B's title that there was not ‘any right of servitude affecting the said piece of ground,’ could not override the implied servitude.” I was at first inclined to think that that case (if well decided) was decided on the ground indicated by Lord President Inglis in the course of the argument in the later case of Dundas v. Blair , 13 R. 759, viz., the law of the tenement. But on examining the case I think it is plain that the decision rests on a broader ground. The case would have been precisely the same if instead of selling the back garden ground to the second purchaser the disponer had retained it and then proceeded himself to obscure the first disponee's lights. He would at once have been met with the objection that he was attempting to derogate from his own grant. In the last edition of Bell's Pr. the learned editor cites the case of Heron v. Gray as an authority for the proposition that a negative servitude may be established “even by implied grant,” sec. 994, and he adds the following note ( g ):—“Doubted by Mr Rankine, Land Ownership, 365; but if the doctrine of implied grant is to be received, there appears to be no sufficient reason for the doubt;” and he refers back to the cases cited in connection with positive servitude by implied grant. I agree with him.
The case of Dundas v. Blair is quite different. That was a pure case of an attempt to establish a negative servitude by prescription alone. What distinguishes that case from this is that in the former the buildings whose lights it was sought to protect had not been erected at the date of the severance. What was given off was simply building ground on which the feuar erected the buildings in question.
On the whole I think that this is rather a strong case for applying the doctrine of Ewart v. Cochrane . Of course the owner of the servient tenement is only obliged to allow a reasonable space between his proposed buildings and the windows of the respondent. But that is not the matter which we have to decide.
Lord Young was absent.
The Court pronounced this interlocutor:—
“Sustain the appeal and recal the interlocutor appealed against: Repel the pleas-in-law for the respondent Andrew Renfrew Clark, and remit to the Dean of Guild to grant the lining, and decern.”
Counsel for the Petitioner and Appellant— Salvesen, K.C.— W. Thomson. Agents— Kirk Mackie & Elliot, S.S.C.
Counsel for the Respondent— Craigie— R. S. Horne. Agents— Campbell & Smith, S.S.C.