S. feued a piece of his ground to M., the feucontract containing this clause-‘Declaring . . that it shall not be lawful to the said S. or his aforesaids or the other disponees to sell or feu any part of the said ground now occupied as the lawn between the ground hereby feued and the said present mansion-house of E. P., and as marked numbers . . on the said sketch or plan endorsed hereon, excepting under the express conditions and declarations that there shall be no more than one dwelling-house, with suitable offices, on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall also be a real burden affecting the said lands and shall operate as a servitude in favour of the said M. and his foresaids in all time coming.’
S. subsequently disponed part of his remaining land, including the parcels of the numbers mentioned in M.’s feucontract, to W., and the disposition contained this clause-‘Under the declaration that it shall not be lawful to the said W. or his foresaids to sell or feu any part of the ground occupied as the lawn between the ground feued by me to M. and the present mansion-house of E. P., excepting under the express conditions and declarations that there shall be no more than one dwelling-house, with suitable offices, on any two acres of the ground so sold or feued, and that each of the said dwelling-houses attached thereto shall be of the value of at least nine hundred pounds sterling, and be maintained in good condition and of such value in all time coming, which restriction shall be a real burden affecting the said lands, and shall operate as a servitude in favour of the said M. and his foresaids in all time coming.’
In an action by a singular successor of M. against a singular successor of W. to interdict the erection of tenement houses, held (1) that the words ‘which restriction’ in W.’s disposition must refer to the whole clause beginning ‘it shall not be lawful,’ and not to the limitation of houses to acreage, and co.; (2) that there was consequently no restriction against the building of tenements by W. or his successors on their land; and further (3) that the intended real burden was bad owing to the insufficient identification of the land to be affected.
Judges:
Earl Loreburn, Lord Kinnear, Lord Dunedin, Lord Atkinson, Lord Parker, Lord Sumner, and Lord Parmoor
Citations:
1915 SC (HL) 79, [1915] UKHL 5, [1914] SLR 614, [1915] UKHL 563, 52 SLR 563
Links:
Jurisdiction:
Scotland
Citing:
Appeal from – Anderson v Dickie SCS 26-May-1914
A disposition of lands by X contained a declaration that it should not be lawful for A (the disponee) or his foresaids to sell or feu part of the lands disponed except under certain specified conditions as to the number and value of the . .
Cited by:
Cited – Axis West Developments Ltd v Chartwell Land Investments Ltd HL 15-Dec-1998
(Scotland) A had granted to C an heritable and irredeemable servitude right to install services under land. A objected to the installation of a particular pipe, and sought damages to the cost of a grant of similar rights. All conditions restricting . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 26 April 2022; Ref: scu.620681
